The House committee investigation of the January 6, 2021, attack on the Capitol is well underway, with its four hearings completed. Here, Stanford Law School Professor David Sklansky discusses key takeaways of the hearings and possible next steps.
We’ve gotten through 4 of the 5 planned hearings. What do you think are the top 2 or 3 revelations from the hearings so far?
Judge Luttig’s testimony was indeed remarkable. It wasn’t just what he said: that former President Trump and his allies are “a clear and present danger to American democracy.” Much of the country already believed that. It was that Luttig has rock solid, longstanding credentials as a stalwart conservative and a Federalist Society luminary. Before he stepped down from the bench in 2006, Luttig was one of the country’s most visible and influential conservative jurists—partly because of the opinions he wrote, and partly for the many conservative lawyers who started their careers by clerking for him.
One of those former Luttig clerks is John Eastman, the Trump supporter and former law school dean who lobbied former Vice President Pence to refuse to accept the electoral college votes for Joe Biden. In his testimony, Luttig blasted this plan as “treacherous” and utterly without legal justification.
For me, one of the biggest revelations of the hearings so far has been the evidence that Eastman—as well as Trump’s lawyer Rudy Giuliani—were well aware of the infirmities of the arguments they were advancing. The other big revelations have to do with Trump. One is how strongly, and repeatedly, he was told by his closest advisors that Biden’s election was legitimate and that the arguments of voting fraud he was advancing were nonsense. Another is the extent of Trump’s personal involvement in all of the key aspects of the drive to overturn Biden’s election: not just the efforts to create fake slates of electors for Pence to accept, in defiance of the actual vote totals last November, but also the haranguing and vilification of local election officials who refused to deviate from their oaths, and the orchestration and encouragement of the violent storming of the Capitol on January 6, 2021.
Who do you think is most vulnerable in terms of facing charges? Do you think there’s enough evidence to formally charge anyone in former president Trump’s inner circle?
It’s hard to say. US District Judge David Carter ruled last March that it is “more likely than not” that Eastman, along with Trump, had committed a crime by illegally trying to obstruct the counting of electoral votes on January 6. But that was in a civil proceeding about the validity of a subpoena issued by the January 6 committee. The standard for criminal conviction is much higher: beyond a reasonable doubt. And most or all the crimes that Eastman and other Trump advisors could be charged with would require proving a guilty state of mind. This might require showing, beyond a reasonable doubt, that they knew that Biden’s electoral victory was legitimate and not the result of voter fraud—or at least that they knew they were obstructing a legitimate government proceeding.
And what about the case against Trump himself? Do you think AG Garland has enough to go on yet?
That’s even harder to say, for two reasons. The first is that it’s particularly difficult to prove what someone “knew” when you’re dealing with a habitual liar, who may have convinced himself of whatever it was convenient for him to believe. The second is that there are prudential considerations that would need to be taken into account before deciding whether to file criminal charges against a former president. On the one hand, there is the vital principle that no one is above the law. On the other hand, a criminal prosecution of a former president could worsen the poisonous levels of division and polarization in the United States today.
Do you think the hearings have been useful for the American people?
Yes, they have been useful. Much of the testimony has covered material that was already known, but the hearings have done a good job stitching it all together. And there have been lots of new particulars, including chilling details about the violence of the mob on January 6 and about the dire and serious the threats to elected officials including Vice President Pence—threats that seemed to bother Trump very little, if in fact he didn’t welcome them. The testimony about the threats of violence and in some cases racist abuse experienced by local officials, and egged on by Trump and his supporters, was also important for Americans to hear. The testimony from those officials was both depressing for what it said about Trump and some of his enablers, and inspiring for what it showed about the decency, integrity, and deep commitment to democracy that can still be found among many Americans on both sides of the partisan divide.
If Congress could take one step to secure the 2024 elections, what do you think it should be?
We need national legislation to block what Trump and his allies tried, unsuccessfully, to accomplish after the 2020 election, and what they may well attempt again to do in 2024: take advantage of the creaky machinery of the electoral college to overturn the results of a presidential election. Congress should amend the Electoral Count Act of 1887, clarifying that the Vice President has no power to reject the results of the election, raising the threshold for challenging slates of electors (which currently requires only one Senator and one member of the House), requiring states to honor the popular vote in selecting electors, and enhancing the ability of federal courts to police compliance with these provisions.
Is there anything else you’d like to add?
It’s important not to get fixated on criminal prosecutions as the only form of reckoning with January 6. Conversely, the absence of a criminal prosecution shouldn’t be taken as a judgment that nothing wrong or illegal took place. For good reasons, the standard of proof in criminal trials is high. The most important question raised by the January 6 hearings so far is not whether Trump or any of his advisers and enablers should be charged with crimes, although the hearings have definitely raised the salience of that issue. The major question is what the nation can do, whether through the criminal process or otherwise, to make sure that the attempted coup on January 6 is never repeated.
David Alan Sklansky is the Stanley Morrison Professor of Law and Faculty Co-Director of the Stanford Criminal Justice Center. His most recent book is “A Pattern of Violence: How the Law Classifies Crimes and What It Means for Justice” (Harvard University Press, 2021).