How to Think about January 6 By Andrew C. McCarthy
What should be the penalty for insurrection? It is, after all, the most profound domestic threat to not merely national security but national survival.
To hear the Biden Justice Department tell it, the penalty for engaging in what Democrats and their media allies incessantly refer to as an “insurrection” at the Capitol on January 6, 2021, should be about . . . well . . . three and a half years. That would be comfortably within the sentencing range that prosecutors concede applies to the first major defendant to plead guilty in the case, Jon Schaffer, a founding member of the Oath Keepers militia organization. To be more precise, he is looking at 41 to 51 months’ imprisonment. Probably even less than that, because he has agreed to cooperate with investigators.
Three and a half years? For what Attorney General Merrick Garland portentously describes as “the most dangerous threat to our democracy” that he has ever seen in his career? And that, from a longtime former judge and prosecutor who, as a top Clinton Justice Department official, not only guided prosecutions of jihadist attacks that killed hundreds in the 1990s but personally supervised the investigation of the 1995 Oklahoma City federal-courthouse bombing, in which a terrorist, Timothy McVeigh, murdered 168 Americans?
McVeigh got the death penalty. Schaffer will get about three and a half years. The Justice Department expects run-of-the-mill stock fraudsters to do more time than that.
So what gives here?
The Capitol riot was a national disgrace. It is a blight on our history. We are wounded by the erosion of a trailblazing American achievement: the peaceful transition of power, which the United States has transformed from what, in the late 18th century, was still an exceptional feat, to what today is a norm in advanced democratic societies.
Too many Republicans slough off January 6 as much ado about nothing, another Democratic-driven political hoax, à la Russia-gate. Some stubbornly maintain that it was orchestrated by radical leftists disguised as Trump supporters. Since this claim cannot withstand scrutiny of the evidence summarized by the mountain of indictments and criminal complaints already filed against the more than 460 alleged pro-Trump rioters, a new claim has emerged, amplified by Tucker Carlson’s prodigious Fox News megaphone: The riot was covertly instigated by the FBI, which entrapped patriotic, fundamentally law-abiding pro-Trumpers.
Nonsense. Of the tens of thousands of Trump devotees from across the country who descended on Washington to attend then-president Trump’s inflammatory speech at the Ellipse, a raucous subset, numbering a few thousand, marched on the Capitol. Most of these were peaceful if misguided protesters, but hundreds were not. Well over a hundred of the latter fought with grossly undermanned, unprepared security forces. The rioters did not kill anyone, as the media–Democratic complex slanderously maintained in the weeks immediately after the siege. But enough force was used to overwhelm the police — about 140 of whom suffered injuries, some of which were serious. That enabled the horde to breach the barriers. No, there was no intention to destroy the Capitol, but windows were smashed, doors were damaged, offices were trashed, and there were sundry other acts of vandalism.
Most significant, Congress was obstructed while conducting a constitutionally required proceeding, in which both houses and the vice president quadrennially bear witness to the counting of state-certified electoral votes and then formally acknowledge the winner of the presidential election, who is to be inaugurated two weeks later. The storming of the Capitol required then-vice-president Mike Pence and lawmakers to be evacuated. Because of bureaucratic incompetence, as well as President Trump’s unwillingness to discourage the rioters or call in the National Guard, it took hours longer than it should have to suppress the agitators, clear the building, and reconvene the session.
But reconvene it did. The damage was minimal. There was no need to find an alternative location. There was no prospect that Pence and Congress would be dissuaded from performing their duty. By the wee hours, Joseph Biden had been duly recognized as the president-elect. Trump was quickly shamed into committing to an orderly transition, and Biden was timely inaugurated, as there was no doubt he would be.
Such a riot, it should go without saying, is very far from nothing. It may be that hundreds of Trump supporters did nothing more serious than trespass (the Capitol may belong to the people, but by law it is a restricted-access federal facility). It may also be that some of those who’ve been identified in the government’s no-stone-unturned, no-Facebook-photo-ignored dragnet never got near the Capitol, or were unaware that entry was prohibited by the time they harmlessly wandered through. Yet, based on the Justice Department’s public disclosures, CBS News reports that more than 130 people have been charged with assaulting, resisting, or impeding federal officers; over 40 have been charged with using dangerous weapons (though these charges mainly involve bear spray and other toxic aerosols, not firearms); and another 30 have been charged with some degree of property destruction.
Again, a national disgrace. There is a disconnection, though, between the grave constitutional affront — namely, the effort to reverse a presidential election — and the crimes committed in furtherance of it, which were comparatively minor in the sense that the perps had no conceivable prospect of achieving that objective.
There is, moreover, a displacement of accountability. The media–Democratic “insurrection” rhetoric is hyperbolic, and the Biden-Garland Justice Department’s portrayal of right-wing groups as an emerging white-supremacist ISIS is preposterous. As horrific as January 6 appeared to be, the real threat to democracy was not the Trump supporters. It was Trump. It was a two-month barnstorm of which January 6 was the climax. It was the turning of the powers and prestige of the presidency against the Constitution presidents are sworn to preserve, protect, and defend.
Democrats, of course, are delighted to keep the spotlight on Mar-a-Lago. Trump’s continuing grip on the GOP — a corollary of his stunningly durable grip on his core supporters, who now dominate many state-party organizations that heavily sway national Republicans — divides the Right and undermines a unified opposition to the faux-moderate Biden administration’s profligate progressive agenda.
Regarding January 6, though, Trump is a second-order consideration. The priority, which was already a hot pursuit before the Capitol riot, is to limn Trump supporters — and, by extension, Republicans and conservatives — as defenders of an incorrigible, institutionally racist order that inspires neo-Nazi terrorism under the guise of championing American heritage, free speech, religious liberty, Second Amendment rights, and equality (the antithesis of “equity,” the Left’s new cynosure).
That explains the now-stalled push for a “national commission” to examine, hold hearings on, and generate an epic report about the Capitol riot — which, mantra-like, Democrats brand the “Capitol insurrection.”
Palpably, there is no need for such a commission, which, as envisioned by legislation passed in the Democratic-controlled House but blocked in the Republican-controlled Senate, was to be a blue-ribbon panel of nonpartisan (of course!) national-security and civil-rights experts, consisting of ten members, five chosen by Democratic and five by GOP leadership. That sounds eminently fair . . . until you factor in that the chairman, chosen by Democrats, would dominate the hiring of commission staff, which controls how these exercises proceed (particularly the report-writing); and that, with Republicans divided on the knotty problem of how to deal with Trump, unified Democrats would have de facto majority control.
A cynic (ahem) might ask how it is that Congress could have impeached a president over the riot yet failed adequately to investigate it. Not just failed. In their haste to present Trump as having instigated the killing of a police officer, Democrats included in their “Incitement to Insurrection” impeachment article and their pretrial brief filed with the Senate a month later the dubious and, we now know, false allegation that rioters had caused Capitol Police officer Brian Sicknick’s death by bashing his head with a fire extinguisher. In reality, Sicknick died of natural causes (two strokes) the day after the riot; he’d suffered no blunt-force trauma, and no one (including two rioters accused of assaulting him with bear spray) has been charged with homicide.
Still, to say the commission is a bad idea is not necessarily to say Congress should move on from January 6. The point is that any need for continuing investigation of the riot should be handled by the representatives the public elects for such purposes. Contrary to popular belief, the job of lawmakers is not to delegate authority and then go on cable news to complain about how “broken” the system is; it is Congress’s job to conduct oversight of the executive branch, examine security breaches on congressional turf itself, and enact any necessary curative legislation — i.e., to be accountable.
A January 6 probe could easily be conducted by Congress’s standing committees or by a special committee, perhaps a bicameral committee, formed for the purpose. The House Democrats, who managed to impeach Trump twice, the second time in warp speed, could get such hearings up and running tout de suite. Indeed, even as Democrats were clamoring that a commission was the only way to go, two standing Senate committees managed to investigate and issue a lengthy bipartisan report on the mind-boggling security and intelligence failures that resulted in the January 6 mob’s overmatching of the police guarding the Capitol.
Democrats have to this point eschewed this approach for a simple reason: They want a 9/11 Commission–style extravaganza to sear in public consciousness their ceaseless narrative that the Capitol riot was a terrorist atrocity on par with the jihadist murder of nearly 3,000 Americans.
The political messaging dates back to the Obama administration, the model for Biden-era Democrats. Shortly after President Obama took office, his Homeland Security Department issued an intelligence assessment that portrayed “right-wing extremism” as the most perilous terrorism threat facing the nation. The report insinuated that traditional conservative policy positions — favoring federalism, limited government, the Second Amendment, a crackdown on illegal immigration, and so on — were drivers of “extremism.” Further, it suggested that military veterans returning from defending America overseas would be likely recruits to extremism. The reflex of the Obama-Biden administration was to downplay actual jihadist terrorist attacks (it called them “man-caused disasters,” implying that they had no Islamist motivation) while trumpeting the allegedly omnipresent threat of forcible right-wing uprisings. In this context, Democrats equate “right-wing extremism” (and, derivatively, “conservatism”) with “white supremacism,” on the theory that Republicans and their supporters envision tearing down government barriers to the onset of a new Jim Crow era.
Democratic proposals for heightened law enforcement and intelligence surveillance of right-wing groups gave us, even before Biden took office, the proposed Domestic Terrorism Prevention Act. It would expressly direct executive agencies to focus their attentions on white supremacism, simultaneously prescribing a new definition of “domestic terrorism” that exempts from its coverage persons in the United States who are “associated with or inspired by” foreign terrorist organizations. That is, it turns a blind eye to jihadism . . . which, naturally, is why Democrats garnered support for their gambit from an array of Islamist-apologist and progressive groups (e.g., Muslim Advocates, the Arab-American Institute, and the Southern Poverty Law Center) heretofore hardwired to oppose U.S. counterterrorism efforts.
Meantime, Attorney General Garland has made a stump speech of the assertion that, “in the FBI’s view, the top domestic violent extremist threat we face comes from racially or ethnically motivated violent extremists, specifically those who advocate for the superiority of the white race.” This was the stated premise for his congressional testimony in May that “I have not seen a more dangerous threat to democracy than the invasion of the Capitol.”
In demanding the establishment of a “9/11-type commission” to examine and report on “the terrorist mob attack,” House Speaker Nancy Pelosi illustrated that the idea was to equate the so-called insurrection with 9/11 while excluding from consideration the markedly more extensive and lethal rioting, led by Black Lives Matter, Antifa, and other left-wing radicals, that occurred throughout the country in the months following the death of George Floyd at the hands of Minneapolis police — an exclusion that would be harder to enforce against Republican lawmakers in the regular congressional-committee structure. Under the camouflage of an apolitical search for truth, the commission would peddle the politicized theme that binds fringe extremists to racism, to all Trump supporters, to Republicans (especially those who cynically supported Trump’s effort to reverse the presidential-election result), and ultimately to conservatives.
It would be a farce.
No matter how many times Democrats call it one, the Capitol riot was not close to being an insurrection.
Insurrection is analogous to treason, for which the federal penal code directs that an offender “shall suffer death” as the preferred sentence. Treason implicates the traitorous citizen who “levies war against” the United States; but, contrary to insurrection, treason is mainly focused on the threat of foreign enemies, and thus on Americans who betray their allegiance by “adhering” to those enemies or otherwise give them “aid and comfort.”
Unlike treason, insurrection is not defined by the Constitution; and while Congress has expressly criminalized it, “insurrection” is not defined in the relevant statute, Section 2383 of the penal code. Nevertheless, we know what it is, not just in common speech but as a matter of law.
An insurrection is a violent domestic uprising that entails levying war against the United States or opposing the government’s authority by force. Federal law regards conspiracies to do these things as sedition in a penal statute (Section 2384) that has been invoked in connection with serious terrorist attacks. (I used it in 1995 to prosecute a jihadist cell that bombed the World Trade Center and plotted to bomb New York City landmarks.) Insurrection is the carrying out of an uprising. It is noteworthy that, for all the politicized prattling about insurrection, none of the hundreds of rioters thus far arrested has been charged with the federal crimes of insurrection and sedition.
The salient element of an insurrection is that the use of force against American authority is so daunting that it cannot be contained by peacetime policing. Thus does the Constitution (in Article I, Section 8) empower Congress to “provide for calling forth the Militia to . . . suppress Insurrections.” One of the first congresses, in 1792, invoked this power in authorizing the president to call forth the militia in cases of insurrection and invasion. President Washington relied on this authority to, for example, put down the Whiskey Rebellion in western Pennsylvania in 1794. In 1807, President Jefferson signed the Insurrection Act, which enabled the president not only to call forth the militia but to “employ . . . such part of the land or naval force of the United States” judged necessary to suppress an insurrection. After the Civil War started, Congress undertook to oppose the rebel states by “an act to suppress insurrection and rebellion,” which President Lincoln duly incorporated into an 1862 proclamation, warning the seceding states and their sympathizers to desist. It was in reference to the Civil War that, in 1868, the 14th Amendment banned from federal office those who “shall have engaged in insurrection” against the United States.
The January 6 rioters did not wage war against the United States. Not only were they dispersed within a few hours; the aforementioned Senate report indicates that the tumult would have been ended even more quickly — and perhaps not even have started in the first place — if the relevant law-enforcement agencies had deployed an adequate number of properly trained police officers. In fact, the only person killed in the mêlée was Ashli Babbitt, a pro-Trump rioter shot by an unidentified security guard as she and others tried to burst through doors leading to the Speaker’s Lobby, which provides access to the House chamber.
Not an insurrection, not a terrorist attack. What happened on January 6 was a brief riot. It already has been and is being thoroughly investigated. Besides the House impeachment investigation and Senate trial, and the Senate investigation that extensively covered the governmental failures, hundreds of criminal proceedings are under way. Ordinarily, congressional Democrats are among the first to insist — at least when a Democratic official is in the soup — that inquests should be placed on hold until the prosecutors finish their work, lest Congress impede criminal investigations. Here, those investigations are already yielding a trove of evidence about how the riot came about, including FBI interviews of key participants.
In light of the probes ongoing and already completed, we will in short order know mostly everything that should be known about January 6. If there is a knowledge gap, it is apt to involve what President Trump was doing minute by minute during the siege. There has been a great deal of press reporting on this, indicating that Trump was monitoring events on television, and none too displeased. In their haste to impeach Trump for inciting insurrection, under circumstances in which, had the criminal law applied, the allegation of “incitement” might have been even weaker than the claim of “insurrection,” it is curious that Democrats omitted scrutiny of his activities. His dereliction of duty, as commander in chief, in failing to take decisive measures to end the riot and protect the seat of government was a firmer basis for impeaching him than the dubious article that was lodged.
In the end, though, the strongest basis was Trump’s betrayal of the Constitution. The states have authority over their elections and the certification of electoral votes. If a state certifies a single set of electors that reflects the result of its citizens’ popular vote, the vice president and Congress are left with only the ministerial task of counting the votes and acknowledging the winner. Yet the president of the United States undermined state sovereignty, assiduously endeavored to reverse election results on unsupported claims of fraud, squeezed state legislators and bureaucrats to overrule their electorates, and pressured his vice president and congressional Republicans to flout their constitutional duty to count the votes.
That was the profound threat to our democracy. Comparatively speaking, the riot was a sideshow. That is why its principal significance now is the advancement of a partisan Democratic narrative, not the vindication of constitutional order. And that is why, far from punishment befitting an actual insurrection against the United States, a leading role in the riot as it unfolded on January 6 is worth only about three and a half years in the slammer.
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