More than a year after the January 6 attack on the nation’s Capital, investigations by the Department of Justice and Congress’s Select Committee are ongoing. Here, Stanford Law School’s criminal justice expert David A. Sklansky discusses the investigations, recent charges against the founder of the Oath Keepers, efforts to get testimony from members of former president Trump’s inner circle, and more.
Do you think the DOJ is making good progress in its investigation of the January 6 attack?
It’s hard to say what good progress would be, because there really aren’t any precedents for this investigation. We’ve never had an assault on the Capitol to stop the certification of a presidential election, let alone one egged on by the outgoing president, who refuses to acknowledge his loss at the polls. And the Department of Justice has never mounted such a large, sprawling, coast-to-coast investigation. It probably has never conducted an investigation with so much electronic evidence to review, including 14,000 hours of video. So far more than 700 people have been arrested in connection with the storming of the Capitol, and more than 160 have entered guilty pleas, 20 of them to felonies. Many of the charges are quite serious. More than 75 defendants, for example, have been charged with using a dangerous weapon or causing serious bodily injury to a law enforcement officer. And the investigation is ongoing.
The founder and leader of the Oath Keepers, Steward Rhodes, was arrested earlier this month on charges including one of seditious conspiracy in the lead up to and during the January 6 attack on the Capitol. Several other members of the Oath Keepers were also charged. Can you explain the charges?
Rhodes and ten other members of the Oath Keepers have been charged with a range of offenses, including destruction of government property and obstruction of official proceedings. But the most serious charge against them is seditious conspiracy, which carries a prison sentence of up to twenty years. By statute, seditious conspiracy is defined as a conspiracy to use force to overthrow the government of the United States, seize any of its property, or obstruct the execution of any of its laws. Rhodes and his co-defendants are charged with plotting to use force on January 6, 2021, to block the lawful transfer of power to the President-elect, Joseph Biden.
What do you think of the DOJ’s case? Is it solid?
It’s always hard to assess the strength of a case just by reading the charges. But the indictment does suggest that in this case, as in many of the other prosecutions arising out of the storming of the Capitol on January 6, 2021, the government is benefiting from the fact that the defendants carried out much of their communications on internet platforms, leaving digital records. This makes it much easier for the government to prove what they said to each other. In effect, it’s kind of like the defendants wiretapped themselves. And since the essence of the crime of seditious conspiracy—or any criminal conspiracy, for that matter—is an agreement, having a verbatim record of the defendant’s conversations is a big help.
In the last two months of 2020, for example, Rhodes called on members of the Oath Keepers to prepare for “a civil war”—“a bloody and desperate fight”—and he told them he wanted to bring weapons to the Capitol and to “prepare to go in armed.” He also expressed his hope that President Trump would “declare an insurrection.” In the days leading up to January 6, Rhodes discussed the guns and ammunition they were bringing to the Capitol and how and where the weaponry would be provided to the “Quick Reaction Force” they were organizing.
The indictment charges that much of this plan was actually put into operation—that some of the defendants formed teams that were part of the mob storming the Capitol January 6, 2021, while other members waited just outside Washington, D.C., ready to transport weapons into the city when and if it was needed. It’s harder to assess the strength of the government’s evidence for these allegations, but the essence of the crime of conspiracy is the agreement itself.
Over in Congress, the committee investigating January 6 has been issuing subpoenas—including several last week for Trump advisors Rudy Giuliani, Jenna Ellis, and Sidney Powell. Do you think they’ll cooperate? Is it important to issue the subpoenas even if they don’t?
The subpoenas are for documents as well as for testimony. They relate to the work that Giuliani, Ellis, and Powell did in the weeks leading up to January 6 to throw doubt on the election results by propagating bogus claims of election fraud. Even before receiving the subpoena, Giuliani’s attorney said that Giuliani wouldn’t comply with it. But Powell’s lawyer says that she will, in fact, submit to questioning by the committee. We don’t know yet about Ellis.
And we don’t really know yet whether Giuliani, in the end, will risk a criminal prosecution for contempt. It’s possible he’ll choose to avoid that by asserting his Fifth Amendment privilege against compulsory self-incrimination. But that would amount to an admission—not legally, but in the court of public opinion—that his truthful testimony could help the government establish his criminal culpability.
Reading news reports, it seems evident that Giuliani and others may have devised a plan to question the election of Joseph Biden, despite Trump’s own administration official’s declaration that it was a fair election. And opinion polls show that many Republicans actually believe the “big lie.” When might that planning and spreading of false claims tip over from free speech to illegal activity? Dominion, the voting machine company, has sued. But is there anything criminal? Is it activity that the DOJ can use to make its case?
It’s important to remember that the congressional committee wasn’t formed to conduct a criminal investigation. That’s the job of DOJ, not Congress. The committee’s job is to learn what it can about efforts to obstruct the lawful transfer of presidential authority following last November’s election, in order to determine what legislative action may be appropriate to avoid similar—or worse—events in the future. An orchestrated effort to spread lies in order to prevent the lawful transfer of power is obviously cause for concern even if it isn’t criminal. But in fact it may well have been criminal, particularly if it crossed the line into a conspiracy to defraud the United States, which is a federal felony.
Is this connected with the recent reports about investigations into slates of fake electors?
Yes, the committee is looking into slates of fake electors that were organized in some states that Biden won, including Michigan and New Mexico. The fake electors claimed that they were the official state representatives to the Electoral College, and that Trump, not Biden, had won their states. That could count as a conspiracy to defraud the United States, and officials in Michigan and New Mexico have asked DOJ to conduct a criminal investigation. Giuliani appears to have helped organize the fake slates of electors.
The former president’s daughter Ivanka has been asked to voluntarily speak with the committee, as have others in the inner circle including Trump’s former chief of staff Mark Meadows. What do you think the committee is hoping to find out from them? It seems to be focused on the former president.
The letter to Ivanka Trump from the committee’s chair, Rep. Bennie Thompson, says that they want to question her about four broad topics: President Trump’s involvement in efforts to stop the congressional counting of electoral votes on January 6, 2021; President Trump’s actions and inactions on January 6; whether or not President Trump took any action to deploy the National Guard in response to the violence at the Capitol; and President Trump’s actions in the days following the attack on the Capitol. So, the committee doesn’t seem to be focused just on what President Trump failed to do; they are interested in the actions that he did take, as well. Whether any of those actions might be criminal is very difficult to assess, especially when we know relatively little about what Trump was doing before, during, and after the attack—aside, of course, from his public statements on television and on Twitter. And it’s worth stressing again that criminal liability is not the committee’s focus.
The Supreme Court’s ruling on Jan. 19 clears the way for the National Archives to release documents from the previous administration that the January 6 Congressional Committee had requested. The committee asked for a trove of documents related to the events surrounding the riot, including records of communication between the White House and the Justice Department leading up to Jan. 6. How important is this?
It’s hard to say without seeing what the documents contain. But it’s not surprising that the committee wants to see these documents. They are likely the best record of what people at the White House were thinking about and doing in response to the events leading up to the assault on the Capitol.
Do you think the Congressional committee and the DOJ are aiming at Trump?
Both the committee and DOJ seem to be conducting very wide-ranging investigations. Neither seems focused solely on Trump. It is certainly possible that he may be called to testify, either to the committee or in connection with criminal investigation. As to what he might be charged with—once again, it’s hard to speculate, without knowing more than we currently do about what he did and said before and during the attack on the Capitol. But if the actions of Rhodes and his co-defendants amounted to seditious conspiracy, anyone else who helped plan the assault on the Capitol on January 6, 2021, or who purposely encouraged the use of force to stop the lawful transfer of power, could conceivably be charged with the same offense.
David Alan Sklansky is the Stanley Morrison Professor of Law and Faculty Co-Director of the Stanford Criminal Justice Center. He is the author of the recently published book “A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice,” (Harvard University Press, 2021).