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The Jan. 6th Committee Report and the Continuing Threat of Political Violence

The report is a monumental achievement that raises complicated constitutional questions. But the story it tells is far from over.
December 19, 2022
The Jan. 6th Committee Report and the Continuing Threat of Political Violence
(Composite / Photos: GettyImages)

It is difficult to overstate the constitutional significance of today’s final public hearing of the House January 6th Committee. Its referral to the Department of Justice of four potential crimes committed by Donald J. Trump and his close associates—assisting an insurrection, obstructing an official proceeding, conspiracy to make a false statement, and conspiracy to defraud the United States—is unprecedented in American history.

But more hangs in the balance than the fate of just one man.

To be sure, much of America wants to see accountability for the seemingly incessant lawlessness of the former president—and for many, that means jail time. But that is far from guaranteed.  The committee cannot bring indictments, of course, and Special Counsel Jack Smith is under no legal obligation to pay heed to a single word in the committee’s report, the introduction to which was published today in advance of the expected release of the complete eight volumes on Wednesday. Even if a grand jury charges Trump with one or more crimes—either related to January 6th or to his theft of classified and other presidential records discovered at Mar-a-Lago—criminal juries must be unanimous to convict. If a single MAGA juror manages to get through voir dire (the process for weeding out jury bias), one “nay” vote could override the evidence and thwart the entire endeavor.

Nonetheless, the January 6th Committee report is important as a definitive narrative of what happened before, during, and after that day. If Trump is indicted, the report will operate as an advance “warm up” of the public to the idea of what has been unthinkable thus far in U.S. history—a criminal prosecution of a former president of the United States. The very fact that a bipartisan congressional committee managed to organize an eighteen-month investigation, interview over a thousand witnesses, review countless documents, refer members of Congress to DOJ for noncompliance with subpoenas, litigate disputes all the way to the U.S. Supreme Court, craft a Netflix-worthy series of seamless public hearings telling the story of January 6th, and then draft a massively detailed report for public scrutiny is nothing short of astounding. It’s kind of like the 2020 election itself, which was pulled off with the aid of thousands of regular Americans during a pandemic and despite the former president’s pressure campaign to blow it up. Both are triumphs of our representative democracy.

Even now, in the committee’s final days, we are learning new information about Trump’s signature mischief-making. Just today, we learned for the first time that White House lawyer Eric Herschmann and Trump confidante Hope Hicks both tried to persuade him—before January 6th—to make a public statement urging nonviolence among his supporters. He refused. Yet it was clear that violence was imminent. A tip from an informant relayed to the Secret Service eleven days before January 6th warned that the far-right Proud Boys planned “to literally kill people.” In the days that followed, the Secret Service and FBI, among other agencies, received warnings about weapons that would be brought to the Capitol and about schemes to occupy federal buildings. Still Trump never once called for the crowds that he summoned to Washington to act peaceably.

One big question implicitly raised by the January 6th Committee’s report, then, is whether “we the people” are ready to accept politics in America devolving more readily into violence. For some, the answer is yes. In a large online survey conducted last summer by Ipsos/UC-Davis, nearly 12 percent of the respondents said political violence was at least “somewhat justified” if it meant returning Trump to power this year.

Trump did not return to power this year. And Republicans did not get the “red wave” they wanted in this year’s midterms, either. But the threat of political violence, and fears of political violence, remain. Last month, an ABC News/Washington Post poll found that 88 percent of Americans are worried about increasing chances of politically motivated violence. Also last month, the Senate Homeland Security and Governmental Affairs Committee released a troubling report on the threat of domestic terrorism; among its conclusions is that the FBI and the Department of Homeland Security “have failed to effectively track and report data on the domestic terrorism threat”—even though “independent experts and national security officials call white supremacist and anti-government violence the most significant terrorist threat facing our nation today.” As Carnegie Endowment scholar Rachel Kleinfeld wrote in the Journal of Democracy last year, the risk of election-related violence has been shown to increase when four factors are in place: (1) a highly competitive election that could shift the balance of power; (2) identity-based partisanship; (3) electoral rules that allow winning by exploitation of identity-based divides; and (4) weak institutional constraints on violence, “leading perpetrators to believe they will not be held accountable for violence.”

Check. Check. Check. Check.

Meaning the threat of another January 6th is far from over.

Our system of government, Rep. Jamie Raskin observed today, is not one “where foot soldiers go to jail and the masterminds and ringleaders get a free pass.” Well, it’s not supposed to be, anyway. Some of the foot soldiers from January 6th are being prosecuted. But many more are still out there—as is their dear leader.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.