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GPSolo September/October 2023: Protest or Riot: An Overview of Accountability

Legal Accountability and the January 6 Attack on the U.S. Capitol

Angela J. Scott


  • Questions persist about what led to the storming of the U.S. Capitol on January 6, how the attack unfolded, and whether there ultimately will be adequate legal accountability at all levels.
  • On December 22, 2022, following an investigation spanning nearly 18 months, the House Select Committee to Investigate the January 6th Attack on the United States Capitol released its final report.
  • As of September 2023, some 1,146 defendants had been charged with crimes for their involvement or participation in the attack. Some 657 individuals had entered guilty pleas on a range of federal charges, and there had been 113 trials resulting in guilty verdicts.
  • On August 1, 2023, a grand jury approved an indictment against Donald Trump, with charges including conspiracy to obstruct an official proceeding, conspiracy to defraud the United States, and conspiracy against rights.
Legal Accountability and the January 6 Attack on the U.S. Capitol
Douglas Rissing via Getty Images

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On January 6, 2021, Americans and the rest of the world bore witness to a brutal attack as fervent supporters of then-President Donald Trump stormed the U.S. Capitol in Washington, D.C. This tragic event, recognized by the Federal Bureau of Investigation (FBI) as an act of terrorism involving an estimated 2,000 individuals, was aimed at obstructing the certification of the democratically held presidential election. In the wake of this attack, the U.S. Capitol and its grounds suffered damages and losses exceeding $2.8 million, with hundreds of injuries reported. Tragically, more than 150 law enforcement officers sustained severe injuries, and at least ten deaths were linked to the attack. Many still find it difficult to comprehend the magnitude of the January 6 attack, which can accurately be described as an insurrection or an attempted coup. And questions persist about what led to it, how it unfolded, and whether there will ultimately be adequate legal accountability at all levels.

Protest or Seditious Conspiracy to “Stop the Steal”

Here’s what we know: The attack unfolded in the aftermath of the 2020 U.S. presidential election, in which Trump, a Republican, lost to Joseph Biden, a Democrat. Trump, without evidence, vociferously claimed that the election was marred by fraud and that he had, in fact, emerged as the victor. This baseless narrative took root among his supporters, stoking their anger and their determination to “stop the steal” of the election. In the weeks leading up to the attack, Trump and some of his allies made inflammatory statements, inciting his supporters to combat what he falsely asserted was a stolen election. Consequently, his supporters turned to social media and other platforms to openly prepare for January 6, all in a bid to secure Trump’s presidency.

While those who assembled on January 6 were ostensibly summoned by Trump for a “protest” that he promised would be “wild,” a significant number arrived in Washington, D.C., armed with weapons and supplies for what they perceived as a battle. It is no secret that among Trump’s supporters are far-right groups, including white supremacists, militia organizations, and other extremist groups (including the Proud Boys and the Oath Keepers), who harbor deep dissatisfaction with the state of our country and have been ominously promising a “civil war” to address their grievances. Just moments before the attack, Trump instructed his supporters to “march to the Capitol” and “fight like hell,” warning that they “won’t have a country anymore” if they didn’t. With a shared objective to “stop the steal” and impede the certification of Biden’s victory, Trump’s army of insurrectionists acted on his directive, and a violent, hand-to-hand battle ensued. Insufficient security measures, failures in preparedness, and a slow response from law enforcement agencies facilitated the insurrectionists’ entry into the building, successfully disrupting and delaying the election certification process.

Trump’s goal to retain power by any means necessary was undeniably clear, but all the methods to this end were not so apparent by January 6. The House Select Committee to Investigate the January 6th Attack on the U.S. Capitol has uncovered the extent to which he and certain supporters went in pursuit of this objective.

Summary of Report and Findings of the January 6th Committee

“If President Trump and the associates who assisted him in an effort to overturn the lawful outcome of the 2020 election are not ultimately held accountable under the law, their behavior may become a precedent and invitation to danger for future elections.” —Select Comm. to Investigate the Jan. 6 Attack on the U.S. Capitol, Final Report, H.R. Rep. No. 117-663, at 113 (2022).

An exhaustive congressional investigation was carried out by members of the House Select Committee to Investigate the January 6th Attack on the United States Capitol. Their mission was to investigate and report on the facts, circumstances, and causes surrounding the domestic terrorist attack that occurred on January 6, 2021. On December 22, 2022, following a thorough investigation spanning nearly 18 months, the Committee released an extensive 845-page report that comprehensively outlined all the evidence pertaining to the events leading up to and during January 6.

Summary of Relevant Findings

  1. From election night through January 6 and beyond, Donald Trump knew he lost the 2020 presidential election and deliberately spread false allegations of election fraud. His dishonesty was intended to aid his effort to overturn the election results and to solicit contributions. His unfounded claims incited the violence among his supporters on January 6.
  2. Despite losing multiple election lawsuits and despite his senior advisors contradicting his election fraud allegations and urging him to concede, Donald Trump refused to acknowledge the legitimate outcome of the 2020 election. Instead of upholding his constitutional duty to “take Care that the Laws be faithfully executed,” President Trump conspired to overturn the election results.
  3. In full knowledge that such an act would be illegal, and knowing that no state had submitted an altered electoral slate, Donald Trump pressured Vice President Mike Pence to refuse to count electoral votes during the joint session of Congress on January 6.
  4. Donald Trump attempted to corrupt the U.S. Department of Justice by urging Department officials to make false statements to support his efforts to overturn the presidential election. When this endeavor failed, Donald Trump offered the role of Acting Attorney General to Jeffrey Clark, knowing that Clark intended to disseminate false information to overturn the election.
  5. Without any credible evidence and in violation of both state and federal law, Donald Trump unlawfully pressured state officials and legislators to manipulate the election results within their respective states.
  6. Donald Trump oversaw an operation to obtain and transmit counterfeit electoral certificates to Congress and the National Archives.
  7. Donald Trump pressured members of Congress to challenge the legitimacy of valid elector slates from several states.
  8. Donald Trump knowingly verified false information in federal court.
  9. Under the false pretext that the election had been stolen, Donald Trump summoned tens of thousands of his supporters to Washington on January 6. While some of these supporters were armed and angry, Trump instructed them to march to the Capitol on January 6 with the intent to “take back” their country.
  10. Aware that a violent attack was taking place at the Capitol and understanding that his words could further incite violence, Donald Trump sent a social media message publicly denouncing Vice President Pence at 2:24 pm on January 6.
  11. Despite the ongoing violence at the Capitol and his duty to ensure that laws are faithfully executed, Donald Trump repeatedly declined requests over multiple hours to instruct his violent supporters to disperse and leave the Capitol. Instead, he watched the violent attack unfold on television, thereby perpetuating the violence and obstructing Congress’s electoral vote count.
  12. Each of these actions by Donald Trump was undertaken to support a multi-faceted conspiracy aimed at overturning the legitimate results of the 2020 presidential election.
  13. Intelligence agencies had identified potential violence on January 6, particularly from groups such as the Proud Boys and Oath Keepers; this proved to be accurate.
  14. Intelligence had not predicted left-wing groups’ significant involvement in the Capitol attack; this proved to be accurate.
  15. Intelligence and law enforcement did not anticipate the full extent of Trump’s plan to overturn the election.
  16. Capitol and D.C. police acted bravely but were overwhelmed; federal agents were deployed to assist.
  17. President Trump had the authority to deploy the National Guard but did not do so; the Secretary of Defense ultimately deployed them due to a likely miscommunication.

Status of Legal Accountability to Date

The evidence in support of the above findings is comprehensive, factual, and highly persuasive. Notably, a significant portion of those who provided evidence and testified under oath in support of these findings were Republicans who endorsed Trump. Consequently, the Committee concluded its report by making criminal referrals to the Department of Justice, accompanied by detailed legal analyses under various criminal statutes, including Obstruction of Justice—Official Proceeding (18 U.S.C. § 1512(c)); Conspiracy to Defraud the United States (18 U.S.C. § 371); Conspiracy to Make a False Statement (18 U.S.C. §§ 371, 1001); “Incite,” “Assist,” or “Aid and Comfort” an Insurrection (18 U.S.C. § 2383); and Seditious Conspiracy (18 U.S.C. § 2384).

Active Participation in the Attack

The Department of Justice’s investigations into the attack and those who participated remain ongoing, and the FBI continues to search for individuals who participated. As of September 2023, some 1,146 defendants have been charged with crimes for their involvement or participation in the attack ( 32 Months Since the Jan. 6 Attack on the Capitol, U.S. Dep’t of Just. (Sept. 6, 2023); this is the final update made prior to this article being finalized and is the source of all statistics in the following three paragraphs).

Most of the defendants have been charged with misdemeanor-level offenses, including parading, demonstrating, or picketing in a Capitol building and remaining in a restricted federal building or grounds. A significant number of these low-level charges have yielded pleas, convictions, and sentences of community service, probation, and restitution.

Some 317 defendants have been charged with corruptly obstructing, influencing, or impeding an official proceeding or attempting to do so. Additionally, 42 defendants have faced charges related to conspiracy. These conspiracy charges include various forms of conspiracy, including (1) conspiracy to obstruct a congressional proceeding, (2) conspiracy to obstruct law enforcement during civil disorder, (3) conspiracy to injure an officer, or (4) a combination of these charges.

Some 657 individuals have entered guilty pleas on a range of federal charges. Among them, 198 pleaded guilty to felonies, and 459 pleaded guilty to misdemeanors. Furthermore, there have been 113 trials resulting in guilty verdicts. Some 623 individuals have received sentences, and out of them, 378 individuals were sentenced to periods of incarceration and 126 were sentenced to home detention.

Notable sentences include those of key figures within the Oath Keepers and Proud Boys, who were responsible for the significant breaches of the Capitol on January 6 and were convicted of seditious conspiracy, among other offenses. Dominic Pezzola, Ethan Nordean, Joseph Biggs, and Zachary Rehl received sentences ranging from ten to 18 years. Most recently, Proud Boy leader Enrique Tarrio, who was not physically present during the attack but played an active role in planning and remotely leading the breach, received the longest sentence to date at 22 years.

Indictment of Donald Trump

On August 1, 2023, a grand jury approved an indictment against Trump, charging him with an extraordinary conspiracy that threatened to disenfranchise millions of Americans. Specifically, and consistent with the recommendation of the House Select Committee, Donald Trump was charged with one felony count of Conspiracy to Obstruct an Official Proceeding under 18 U.S.C. § 1512, one felony count of Obstruction of and Attempt to Obstruct an Official Proceeding under 18 U.S.C. § 1512, one felony count of Conspiracy to Defraud the United States under 18 U.S.C. § 371, and one felony count of Conspiracy Against Rights under 18 U.S.C. § 241. He has pleaded not guilty to all charges.

The Department of Justice remains actively engaged in investigating those who bear responsibility for the January 6 attack. Beyond those who schemed, endorsed, assisted, or actively participated in the insurrection, inquiries persist regarding high-level individuals who possessed prior knowledge of the potential for an attack but failed to intervene or prevent the foreseeable attack. Questions also remain concerning those who provided assistance to the insurrectionists, including offering advanced reconnaissance tours and supplying maps of the U.S. Capitol. Were the security breaches encouraged? Were they preventable? Investigations and ongoing legal proceedings continue to shed light on the motivations and actions of the individuals involved. Accountability is in progress but far from complete.