One year after the Capitol uprising, the threat comes from inside the building | Michael C. Dorf | Verdict
The first anniversary of the January 6 Capitol uprising naturally inspired many reflections on the meaning and consequences of that fateful day. But neither can be fully known yet. It all depends on what comes next. The 1993 World Trade Center (WTC) bombing killed six and injured over a thousand, but on its first anniversary, the event was mostly seen as a one-time event. It was only after the September 11, 2001 attacks that the 1993 explosion was understood as a deadly warning and ignored.
Will history repeat itself and intensify when it comes to the assault on American democracy? The WTC attacks are instructive. Even knowing that the jihadists were targeting the WTC, US counterterrorism officials missed signs that the next attack would use hijacked planes rather than a truck bomb. Likewise, the next assault on American democracy could use a different weapon and come from a different direction. Next time, the attack could come from inside the Capitol and other institutions of American democracy.
Politics in political violence
During the Senate trial for the second impeachment of former President Donald Trump, his defense team argued that he did not incite the Capitol uprising because the language he used to urge his Supporters to “fight” their perceived enemies was simply rhetoric, no different from similar terms used by Democratic politicians in support of protesters against racial injustice and police misconduct at rallies throughout 2020.
The claim is absolutely not convincing. As long-standing case law makes clear, whether an actor commits the crime of incitement depends not only on the particular words used, but also on the context. In none of the examples identified by Trump’s lawyers could one plausibly interpret the speaker’s words as promoting actual violence. On the other hand, Trump urged supporters at January 6 rally to “fight like hell” and “go down to the Capitol”, where he knew there was a “wild manifestation” going on that he himself had encouraged.
Moreover, even though Trump’s January 6, 2021 speech did not satisfy the Supreme Court Brandenburg test for criminal charges, article of impeachmentTrump’s charge of “inciting insurgency” referred to Trump’s broader conduct aimed at undermining the outcome of free and fair elections. Because the commission of a crime is neither a necessary nor a sufficient condition for an impeachment conviction, it is entirely possible that Trump may have a good defense against a narrow charge of incitement to crime, even if his actions allowed the Senate to convict him on the basis of the impeachment article passed by the House.
Ultimately, of course, more than enough Republican senators feared a backlash from Trump and his supporters to escape conviction. Citing the historically dubious claim that a former public servant is not liable to a conviction by indictment, even senators like Mitch McConnell, who condemned Trump’s behavior, voted to acquit him.
Where does that leave things? Visible crackpots like the “QAnon Shaman” will go to jail. The Department of Justice (DOJ) has accepted guilty pleas from more than 150 of the more than 700 other rioters he has charged, including a member of the Proud Boys whose cooperation can help secure convictions against some of the insurgency’s other most violent participants. It is even possible that criminal charges may be laid against former government officials and / or current members of Congress who organized or facilitated the insurgency. And, of course, the Special House Committee, undeterred by the obstruction of Steve Bannon, Mark Meadows and other Trump followers, may uncover further evidence of complicity at the highest levels.
Yet while the DOJ and the House Select Committee rightly pursue these various forms of accountability, we must not lose sight of the highest stakes. The Capitol uprising was a tragedy for the police and others injured and killed, their families and the many people, including members of Congress, who suffered intense psychological trauma. But in that regard, it was not much different from other horrific acts of violence in a country where around 20,000 people are murdered each year.
For direct victims, lethal violence is lethal violence. From a societal perspective, however, Politics violence is different. The organized Black Lives Matter (BLM) protests in 2020 were extremely peaceful. What we saw of breaking the law was generally the work of opportunistic looters. I don’t wish to downplay the detrimental effect of such conduct, but Trump apologists’ comparison of breaches of the BLM protests and the Capitol insurgency ignores the fact that the former included virtually no violence. political, with the exception of a few independent marginal anarchists.
Despite a common translation error of the Prussian general and strategist Carl von Clausewitz, war is not politics by other means. The violence of war and violence in the broad sense can be aimed at the acquisition of political power, but in a democracy political violence is an oxymoron. To practice democratic politics is to accept a common set of ground rules for the peaceful resolution of political differences. When the loser of an election uses violence to try to change the outcome, democratic politics stops working.
Fire next time
Preventing an exact repeat of January 6, 2021 should be relatively straightforward. Track investigation, crowd control, physical barriers and a massive security presence can ensure that a crowd does not storm the Capitol again. But just as counterterrorism officials who had the experience of a bomb planted inside the WTC failed to prevent hijacked planes from attacking from outside the buildings, so in 2025, too narrow a focus on preventing rioters from breaching the Capitol’s external defenses risks overlooking the threat within our supposedly democratic institutions.
We learned last year that some of Trump’s more extreme stalwarts in Congress, such as Lauren Boebert, Paul Gosar, Marjorie Taylor Greene, and Jim Jordan, may have been actively involved in the insurgency. But we already knew that Republican members of Congress were keen to overthrow American democracy even before the physical attack.
Two days before last year’s uprising, Verdict published a column that I wrote titled The challenges of January 6. In it, I have mainly focused on the peaceful means by which many Republicans have sought to overthrow American democracy. I was also worried that “Trump’s brown shirts [might] answer his call and light the capital ”if his authoritarian allies in Congress fail to block the certification of the State Electoral College votes that Trump falsely claimed to have been stolen from him. I predicted that the following years would see a battle for the soul of the GOP, pitting social and economic conservatives against outright authoritarians.
This battle is increasingly one-sided, with the authoritarians winning. Indeed, even on January 6 itself, 139 members of the Republican Chamber and eight Republican senators– people whose lives were in danger hours earlier because of a crowd inspired by Trump’s big lie – voted to overturn the election result on the basis of that same lie. While Trump never or even sometimes Trump but not when he attacks democracy, Republicans retire or face major challenges from Trump-backed fire-eaters, the ranks of authoritarians are swelling. If the GOP takes control of one or both houses of Congress in the midterm elections later this year, it will likely use its power to shut down inquiries and, assuming it retains power in 2024, could give effect to a second edition of the Big Lie of January 6, 2025.
Indeed, even without control over Congress, there is a growing existential threat to American democracy, as the number of Trumparatchiks in state legislatures and in positions responsible for administering elections increases. Consider an aphorism worthy of three Gifts. In the original 1971 Godfather film, Don Corleone says “a lawyer with a briefcase can steal over a hundred gunmen”. In his 1989 song Give me what you got, former Eagle Don Henley changed “lawyer” to “man”. The Third Don, former President Trump, seems to have adapted the lesson as follows: A state legislature without a commitment to democracy can steal an election more effectively than a mob armed with stolen flag poles, fire extinguishers and police shields.
The efforts of the DOJ and the House Select Committee to hold the planners and perpetrators of the Capitol Hill insurgency accountable are essential to the preservation of American democracy, but they are not enough for the task. The willingness to resort to political violence is a terrible symptom. Trumpist authoritarianism is the underlying disease.