ProPublica has a series of investigative reports on
The Insurrection, the January 6 attack on the US Capitol by violent pro-Trump insurgents who roamed the halls of Congress attacking Capitol police and chanting "Hang Mike Pence!" and "Kill the Infidels!"
Criminal investigations are proceeding. Dave Neiwert has been following the process and provides a status report in
Oath Keepers, Proud Boys spun a web of conspiracy leading to Jan. 6 insurrection, filings show Daily Kos 03/29/2021:
It was already clear from external evidence that far-right extremist like the Proud Boys, Oath Keepers, and III% [Three Percenters] militia groups played a central role in the violence that day, particularly in breaking down police barricades and entering the U.S. Capitol on Jan. 6. Now the evidence clearly demonstrates that a conspiracy among the participants had been in the works for several weeks, and that the siege was not merely a protest that got out of hand, but a carefully organized assault on the American election process. [my emphasis]
He makes particular reference to the work of Marcy Wheeler ("emptywheel", who has also been doing detailed research into the cases, e.g.,
Days After and Oath Keeper Event with Roger Stone, Kelly Meggs Described Having "Organized an Alliance" with the Proud Boys Emptywheel 03/26/2021.
When it comes to the planners and high-level collaborators, it's not unusual that the evidence for their prosecutions are built up through testimony and other evidence from lower-level participants. But it's also important to remember that the violent radical right, like jihadist terrorists, have also been promoting "stochastic" terrorism for years. So tying legal culpability for individual acts of violence to senior Trump Administration officials could be very difficult. Although in a very practical sense, it's clear that Trump's January 6 speech was a direct incitement to the violent attack on the Capitol that immediately followed it. Whether or not it meets the legal hurdle for criminal charges.
At least we aren't hearing high-level statements that the Biden-Harris Administration intends to give the Trump Administration the kind of
de facto impunity for criminal conduct that the Bush-Cheney Administration received. Even before Barack Obama took office as President, he was advocating for such impunity for the preceding administration.. David Johnston and Charlie Savage reported on this strong preference of Obama's for what became known as his "look forward, not backward" policy in a piece from January 2009, during the transition period between his and Bush's Presidencies (
Obama Reluctant to Look Into Bush Programs New York Times 01/09/2009):
As a candidate, Mr. Obama broadly condemned some counterterrorism tactics of the Bush administration and its claim that the measures were justified under executive powers. But his administration will face competing demands: pressure from liberals who want wide-ranging criminal investigations, and the need to establish trust among the country’s intelligence agencies. At the Central Intelligence Agency, in particular, many officers flatly oppose any further review and may protest the prospect of a broad inquiry into their past conduct.
In the clearest indication so far of his thinking on the issue, Mr. Obama said on the ABC News program “This Week With George Stephanopoulos” that there should be prosecutions if “somebody has blatantly broken the law” but that his legal team was still evaluating interrogation and detention issues and would examine “past practices.”
Mr. Obama added that he also had “a belief that we need to look forward as opposed to looking backwards.” [my emphasis]
Obama was a specialist in constitutional law, so he clearly understood the seriousness of what he was proposing. He is quoted in that same article as recognizing explicitly that waterboarding, a method infamously used by the Bush-Cheney Administration, was torture. And he knew he was thereby saying that it was a criminal act under US and international law.
This was a strong early sign of the
conservative streak that Obama demonstrated throughout his Presidency. (Although it would be legitimate to ask whether it can be called "conservative" to not prosecute crimes for which there is strong evidence.)
But it was not only issues related to war and torture that led many Democratic and left-leaning activists to demand legal accountability for the Bush-Cheney Administration. As just one example, they (we) were also expressing major concern about evidence in the public record that the Administration had in fact pushed federal prosecutors to bring purely politically-motivated cases. The prosecution of the former Democratic Governor of Alabama, Don Siegelman, was one of the instances that appeared to be most blatant. (See:
Former Gov. Don Siegelman: How to fix the court system that got me AL.com 06/24/2020)
It was reported during the Bush-Cheney Administration that Karl Rove had pushed US Attorneys to bring malicious prosecutions against Democratic officials. Anyone who has followed the case of former Brazilian President Lula da Silva and other left-leaning Latin American political figures as part of the
Lava Jato corruption investigation project, which we know now was pursuing malicious, partisan-political prosecutions. (Andrew Fishman et al,
Breach of Ethics The Intercept 06/09/2019
John Dean discussed one action that Obama's Attorney General Eric Holder took to remedy a case of malicious prosecution. (
The Strong Message Attorney General Eric Holder Sent to All Federal Prosecutors When He Dismissed the Indictment Against Senator Ted Stevens, and the Apparent Basis for the Dismissal FindLaw 04/03/2009) And his hopeful assessment seemed reasonable at the time: "Eric Holder's actions ... have now sent a message to the entire establishment of federal prosecutors. Holder is depoliticizing the Justice Department, to ensure fairness for Republicans and Democrats alike. And he has placed all federal prosecutors on notice that his Justice Department will play by the rules."
It's also worth noting that Ted Stevens had been a
Republican Senator. As Dean pointed out emphatically, Holder's action was the right thing to do. But it could also have been a gesture of the bipartisanship that the Obama-Biden Administration pursued with so little positive result. Less generously but also plausible in retrospect was that it could have been intended also as a signal that Holder's Justice Department had no intention of prosecuting the torture crimes or even the type of abusive prosecution that Holder's action remedied in the Stevens case.
But the US justice system
is set up to handle independent prosecutions of public officials, including elected officials, who violate the law. In fact, it would be misconduct, even criminal misconduct, for investigators or prosecutors
not to proceed against such officials in cases where there is substantial evidence crimes have been committed.
That's one reason Obama's comments such as that above in the month before he was sworn in as President were so concerning. I know of no evidence that Obama as President directed interfered in any such Justice Department process. But by his public statements like the one quoted above, he was sending an unmistakable signal to his future Justice Department that he wouldn't look favorably on such a development.
It would also be interesting to know just how active a role the Obama Administration played in the prosecutorial and judicial misconduct connected with the
Lava Jato investigations. What we do know presents an ugly picture, unfortunately in line with the longtime bipartisan US policy toward Latin American nations. (Andrew Fishman et al,
"Keep It Confidential" The Intercept 06/09/2019
But it was only weeks later that Holder's Justice Department announced they would not proceed with prosecutions against CIA employees who had engaged in torture crimes. Because, to use a notorious phrase, they were just following orders. A
Washington Post editorial at the time praised that more than dubious course of action (
President Obama's wise decision on dealing with the legacy of torture 04/17/2009):
The Obama administration acted courageously and wisely yesterday with its dual actions on interrogation policy. The pair of decisions -- one essentially forgiving government agents who may have committed heinous acts they were told were legal, the other signaling that such acts must never again be condoned by the United States -- struck exactly the right balance.
The administration announced that it would not seek to press criminal charges against CIA operatives who participated in enhanced interrogations of terrorism suspects during the Bush administration. "It would be unfair to prosecute dedicated men and women working to protect America for conduct that was sanctioned in advance by the Justice Department," Attorney General Eric H. Holder Jr. said in a statement. [my emphasis]
The
Post editorial included this mealy-mouthed CYA comment, "Yet the decision to forgo prosecutions should not prevent -- and perhaps should even encourage -- further investigation about the circumstances that gave rise to torture."
The editorial at the time
was titled "Dealing With a Disgrace." (This is part of why I use the somewhat cumbersome practice of citing full article titles in my posts.) I supposed someone realized that a title using the word "disgrace" was a little embarrassing for an editorial that was praising the Administration for not prosecuting known torture crimes.
I wish I could say that Democrats in Congress raised a big stink over this no-prosecution decision and held hearings on whether the Justice Department was deliberately excusing criminal actions. Which it seems pretty obvious that they were. But the Democrats didn't do that.
This neglect to hold the previous Bush-Cheney Administration responsible for
crimes committed by government officials had destructive consequences for the rule of law and for politics. The Democrats signaled loud and clear that they were willing to let a Republican administration break the law blatantly and not hold them legally accountable. Obviously, the Democrats didn't demand impeachment hearings against President Bush over the torture program.
Which brings us to the Trump-Pence Administration and the January 6 Republican insurrection in pursuit of a coup attempt. Kim Ghattas writes about this issue of Executive impunity, both legal and otherwise (
The Moral Cost of Choosing Stability Over Justice The Atlantic 03/27/2021):
What did the previously unimaginable experience of watching an attempted coup unfold in Washington, D.C., bring to Americans’ understanding of the fragility of democracy anywhere and, crucially, the quest for accountability everywhere? If America cannot go forward until there is justice, can other countries? Bypassing accountability in the name of “moving on” will not succeed—should not succeed—in the United States, in much the same way that making compromises overseas in the name of stability has failed to deliver either justice or stability.
Gattas invokes some parallels between American and Lebanese politics that I won't address here. But there are valid lessons that we can learn about accountability for political crimes, of the sort that are
actual crimes committed by politicians and public officials. But what she says here is certainly relevant to the legacy of Trumpism, "Pursuing stability without justice achieves neither."
American values and American interests will never fully align, and the U.S. will always be accused of hypocrisy as it upholds human rights. But after the events of January 6, Americans must, more than ever, understand that unearned forgiveness and a lack of accountability can perpetuate the rot in the system, erode norms, and undermine long-term stability and governance, at home and abroad. ...
Democracy is a lofty goal, and a loaded word in the Middle East, after the Bush administration’s “freedom agenda.” But accountability is a worthy quest that can enable the building of institutions, judicial systems, and functioning governments, and pave the way to better governance and rule of law. ...
Accountability may appear divisive, but in some ways, that is the point. “It is intended to enforce a clear division between those who accept and are committed to democracy and those who are willing to turn to violence when the vote doesn’t turn out the way that they want it to,” Henry Farrell, a politics professor at Johns Hopkins University, wrote after the Capitol insurrection. [my emphasis]
Here are links to some of my posts from December 2008-May 2009 on the need for accountability that the Obama-Biden Administration did not provide:
Cheney, the Dark Lord of torture 12/17/2008
Nixonism and Cheneyism 12/28/2008
Legal accountability 01/10/2009
Accountability and the rule of law 01/10/2009
Lead military commissions judge speaks out on torture 01/14/2009
The looming cloud of accountability 01/24/2009
Legal accountability: Nancy Pelosi supports it 02/27/2009
Cheney-Bush accountability 02/28/2009
Good news on the international law and domestic rule-of-law front 03/13/2009
This isn't going away 03/19/2009
Not going away 04/17/2009
PBS Newshour bungles the torture memos story 04/18/2009
How democracy dies, Chapter 423 04/17/2009
Torture and the rule of law 04/20/2009
The evidence for criminal behavior on the torture program was substantial:
Credit where due 04/21/2009.
There were plenty of international precedents, including the Nuremburg Tribunal and many national trials for war crimes after the Second World War. Argentina also provides some recent examples:
Raúl Alfonsín of Argentina: he also had to deal with his predecessors' torture crimes 04/22/2009.
The Beltway Villagers were aghast at the idea that criminal acts related to the torture program:
A Twitter-plus thought on law and order 04/23/2009
GOP aggression techniques 04/24/2009: "honorary Democrat Joe Lieberman has joined with hardline Bush supporter a legendary Maverick John McCain to write to the Obama administration opposing any prosecution of lawyers criminally involved in the torture policy."
The reality of the anti-torture laws is becoming more clear to even our press corps 04/24/2009
The Altstötter war crimes case 04/26/2009
Going after all the torturers? 04/26/2009
Naomi Wolf on collective guilt 04/28/2009
Thinking about war crimes 05/01/2009
