Most of us can recall where we were when JFK was assassinated in 1963, or where we were when Neil Armstrong took that one small step for man, or where we were on September 11, 2001 and the toppling of the Twin Towers. My parents could recall where they were when Pearl Harbor was attacked on December 7, 1941. No doubt my grandparents could recall where the were when they read about the attack on the Lusitania in May of 1915.
History does leave an impact. Once we experience great events, either directly or indirectly, the memory of those events leaves an indelible imprint on our individual and collective memory.
Some may recall that before going into law I taught high school U.S. history. Believe me, that was no easy gig. To many students, history was almost as riveting as conjugating a Latin verb or diagraming a sentence. Basically the kids thought, and sometimes asked, “why do I have to learn this stuff?” I’m sure they edited that last word so as not to offend my sensitive ears.
But once they started talking about a contemporaneous occurrence, I’d be hard pressed to quiet them down. And I’d often be reluctant to try. I was happy to discuss events that were important to them. When possible, I tried to relate the current event to a relevant historic antecedent in order to better understand the event in its historical context. Sometimes I succeeded, sometimes not so much. So it goes…
January 6, 2023 is the two year anniversary of the assault by a lawless mob on the Capitol building in Washington D.C. The mob had one common purpose - to prevent the Constitutionally mandated certification of electoral votes for president and vice-president of the United States and to impede the peaceful transfer of power in a democracy.
The horror of that event has been imprinted on most memories. And as the House Select Committee to Investigate the January 6th Attack on the United States Capitol shows, there is ample evidence of wrongdoing by people in and out of government. With the change of political leadership of the House, the Committee has released its Final Report in print and on-line, along with transcripts of depositions and other evidence, to the public. As of this writing, I have skimmed (and that might be an overstatement) the on-line Report, and read some but not all deposition transcripts.
But on the table next to where I write this, I have the print edition of the Report. And is that sucker thick! And written in small font. Suffice it to say that it’s very thorough. And that’s all to the good.
For some reason I’ve thought back to about 35 years ago and considered that if the Capitol assault happened when I was teaching, what would I tell the kids in my classes? I don’t know, I’d be trying to process these events like everyone else. However, with time and distance, I’d like to think I’d approach the assault on three levels: the historic, political, and legal levels.
The historical analysis is pretty straightforward. Most reports and analysis tends to create the historical line from 2021 to 1814, when the British burned the Capitol, along with the White House and other buildings in the District of Columbia. I’m unsure of that analytic construct as the British were not trying to stop a vote count related to a transfer of power. The goal of the British was to trash the physical presence of our government.
To put it in today’s terminology, the goal of the British in 1814 was the equivalent to a “smash and grab.”
I think the better parallel is to February 13, 1861. On that date, the electoral votes cast in the 1860 presidential election were to be tallied and certified, the winner of which was to be declared the next president. I hope most know that the winner of that election was Abraham Lincoln.
Recall that by the mid-1850’s, the country was increasingly, probably irretrievably, divided over the issue of slavery. The south tried to couch it as state’s rights to defend their “peculiar institution.” By the election of 1860, there were already calls for secession before the first votes were cast. From the south’s viewpoint, there was only one candidate - John C. Breckenridge - who was seen as a defender of the institution of slavery. Two others - Stephen Douglas and John Bell - were seen as too weak or too disinterested to defend and advance the south’s concerns. Only one candidate - Abraham Lincoln - was seen as an enemy of continued slavery in the south and its expansion westward.
From the south’s point of view, the wrong guy won. And don’t discount the location of the District of Columbia in 1861 as related to the nation’s divide. The city was bordered by the slave states of Maryland and Virginia.
At that time in history, the winner in the 1860 presidential election was to take office in March 1861, not in January as it is today. That being the case, opponents of Lincoln’s assuming office had sufficient time to organize. On February 13, 1861, an anti-Lincoln mob went to the Capitol with the intent of entering and stopping the certification of the electoral votes. Fortunately, there was sufficient security to prevent any breach of the building. But it was loud and one misstep away from turning into full scale violence.
We know that within weeks of the certification of the electoral vote, a plot to assassinate Lincoln was discovered. The idea was to kill him on his journey to Washington to assume the presidency. Thanks to the resourcefulness of Allen Pinkerton, Lincoln safely made it to Washington, took his oath of office, and within weeks, the first shots starting the Civil War were fired.
Segueing to the political, I’d like to paraphrase John Harrington: “[Fascism] doth never prosper, what’s the reason? For if it prosper, none dare call it [fascism].” Beyond this spiffy quasi-quote, Harrington also invented the flush toilet. A man of many talents.
Yup, I dropped the “f” bomb - fascism. There are countless books discussing fascism and it’s easy to get lost in the weeds on this topic. So as an organizing construct, according to Brittanica Dictionary, fascism is defined as “ a way of organizing a society in which a government ruled by a dictator controls the lives of the people and in which people are not allowed to disagree with the government.”
But if you’re queasy about using the “f” word, then feel free to use the “a” word - “authoritarian.” Using Brittanica once again, authoritarianism is defined as “a principle of blind submission to authority, as opposed to individual freedom of thought and action. In government, authoritarianism denotes any political system that concentrates power in the hands of a leader or a small elite that is not constitutionally responsible to the body of the people.”
The “F” or “A” word is kind of like tomato/tomahto. Basically it’s the same damn thing!
The Speaker of the House pursuant to House Resolution 503 formed the House Select Committee to Investigate the January 6th Attack on the United States Capitol. As the Select Committee revealed, the events of January 6, 2021 were not the organic spontaneous uprisings that some would have us believe. Rather it was the conscious effort by one man, abetted by a small group of bootlicking sycophants, to exploit the political divide in this country for the sole purpose to retain power after he lost his re-election bid.
The Select Committee revealed evidence that while he knew he had lost election, this man continued to fund and file baseless legal claims that the election was “rigged.” We know that he leaned on election officials and state legislators to act to “find” him more votes.
The failed, twice impeached, wannabe authoritarian former president (I refuse to acknowledge him by name) invited the mob to come to Washington, ginned them up in a speech delivered on January 6, exhorted them to march to the Capitol building, and then watched on television as the violence unfolded. For 187 minutes he did nothing to stem that violence.
And this is just the tip of the efforts that the failed, twice impeached, wannabe authoritarian former president made to undermine our democracy. The events leading up to the insurrection in January 2021 were in furtherance of a conspiracy to commit a coup. It was sloppy, incompetent, poorly planned, and horribly executed, worthy of a Monty Python skit. It clearly wasn’t funny, leaving hundreds of Capitol police injured, some seriously injured, and seven people dead either directly or indirectly from the results of the failed coup.
Many have opined that the failed coup was just practice for an eventual successful coup. History again gives us something to learn. The 1923 Beer Hall Putsch in Munich, Germany led by, among others, Adolf Hitler, failed. Epically, massively failed. And among others, Hitler was convicted and served time in prison, time spent writing down his lunatic rants in the form of a book. He served one year of a five year sentence and upon his release resumed his political activities in what became the National Socialist German Workers' Party, or Nazi Party.
By working through the existing political system, in 1933 the Nazis had a plurality in the Reichstag and Hitler was appointed Chancellor. In 1934, he was the Fuhrer and the rest is history. Really bad history written in the blood of 60 million people.
We know that the very evening after our attempted coup, upon resumption by the Congress of the certification process 147 republicans continued to vote to challenge the electoral votes from key swing states. Many of these election deniers continue to serve in congress.
And for two years after his leaving office, we have been and continue be barraged with “Big Steal” messages issued by the failed, twice impeached, wannabe authoritarian former president. And in 2022, many of his acolytes ran for office as election deniers. Although they had the imprimatur of the failed, twice impeached, wannabe authoritarian former president, thankfully most lost. But some won. And it doesn’t take much to break our democratic processes.
On this second anniversary of the attempted coup, we are saddled with a non-functioning Congress. As I write this, one half of one branch of government is effectively closed due to a battle over the election of a Speaker. As of this writing, the day began with 21 members of the House refusing to vote for the leader of their party, Kevin McCarthy, to be Speaker of the House. By dinner time, the number of the “never Kevin” contingent was down to six.
To get the job of Speaker, McCarthy has done everything from offering plumb committee assignments to changes of the internal rules of the House. Time will tell if any of the 21 extortionist congressmen and/or their allies are placed on the on the Rules Committee, or made chair of powerful committees such the Judiciary Committee. Some may become chairs of subcommittees. This alone would surely upend the process of legislating on behalf of the American people, thus eroding confidence of the American people in their government.
To be clear, these anti-democratic extortionists don’t give a rip about the American people or the concept of democracy. These are authoritarian ideologues pursuing power for their own purposes, while damaging a constitutional branch of the government in the bargain. How much damage remains to be determined.
The combination of strong willed, acutely focused, anti-democratic extortionists and spineless, craven “leadership” caving in to those extortionists will surely result in a diminution of an effective responsible functioning government and democracy itself.
Add to this the election deniers who sought office in 2022. More worrisome than their election to federal office is their election to state legislatures and as election officials. It is at the local level where democracy is most vulnerable. It is at the state level where congressional and state legislative districts are drawn. And if these districts are gerrymandered for a political purpose and not drawn to discriminate against racial groups, the US Supreme Court is ok with that. Currently the Court is considering the independent state legislature theory, under which the state courts would be denied any review of the constitutionality of districts drawn by the state legislatures every ten years.
This is serious business. Elections have consequences and often the drawing of districts and the administration of elections determine who gets elected and the policies they will pursue. We must be mindful of what political scientists call competitive authoritarianism. This is where the political processes appear to be democratic but in reality the outcome is predetermined. Just look at Florida.
And this brings me to the legal analysis. The Department of Justice has prosecuted approximately one-half of those indicted on a variety of charges related to the attempted coup of January 6. However no charges have as yet been brought against those who engaged in the planning, attempted coordination, and deliberate incitement of that coup.
The Select Committee, based on the evidence it uncovered, referred for prosecution to the DOJ, four felony charges against the failed, twice impeached, wannabe authoritarian former President and “others.” It has also transferred all its evidence, some still unknown to the public, to the DOJ for its review and legal analysis.
This is an important development. In our history, high government officials have been subject to prosecution, mostly for financial crimes. In 1973, Vice President Spiro Agnew resigned his office as the result of a plea bargain regarding criminal charges that focused on his implementation of a kick-back scheme while governor of Maryland.
Even Nixon resigned amid charges of abuse of power. But while he stretched the law to prevent the disclosure of incriminating evidence, when the Supreme Court held that he had to give the evidence to the special prosecutor, he did. While he deserves no kudos for obeying a court order, he did recognize that he had to bend to the rule of law. In the end, he had at least a grudging respect for the rule he tried to skirt.
The failed, twice impeached, wannabe authoritarian former president has no respect at all for the rule of law. He sees the law as an impediment or as a tool to get what he wants. His personal history is rife with examples of his complete disdain for the law and its ability to hold him accountable for his actions. He takes the position of Captain Barbosa in Pirates of the Caribbean, laws are mere “guidelines,” to be embraced or ignored at will.
The law, enacted by democratic processes, is vindicated when those who transgress it are held to account. When we think of democracy and democratic principles we often think about elections. But it is the law that is the bulwark of democracy, not elections. It is the application of law to the acts committed by anyone, high or low, without fear or favor, that vindicates democracy’s promise to be ruled by laws and not by men.
When the law is applied faithfully, each person is treated equally and fairly. But we know that’s the ideal, not the real. In this case, those who were behind the events leading up to the January 6, 2021 insurrection, and that’s exactly what it was, were all committed to the goal of upending a free and fair election and installing a man in the presidency whom a majority of the 2020 voters sought to remove.
If those who orchestrated the insurrection are treated any differently than those who breached the Capitol, the law will have failed. The consequence of any such failure will be the further damage to our democratic principles and processes. This is a failure we can ill afford.
The decisions to be made by the DOJ will either restore some respect for the rule of law or will erode the people’s faith in its impartial application. Let the legacy of the January 6, 2021 insurrection be a renewed faith in our institutions and fellow citizens, and the law that protects them.
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