What You Should Know
In promising news for the rule of law, over the past several months, criminal and civil proceedings are resulting in much-needed accountability for former President Donald Trump and top allies who assisted his plot to overturn the 2020 presidential election.
Federal and state authorities have initiated criminal court proceedings against Trump and many of the advisors who were instrumental to his plan to stop the peaceful transfer of power. These proceedings will be ongoing for many months and likely result in jury trials. There are also ongoing lawsuits to declare Trump disqualified from holding future public office under Section 3 of the 14th Amendment.
There are multiple ongoing disciplinary proceedings against Trump’s top attorneys. Some of these attorneys, including Rudy Giuliani, have already had their law licenses suspended for their role in trying to invalidate a free and fair election.
More than 1,110 individual rioters have been charged with or convicted of participating in the January 6 insurrection at the U.S. Capitol. But as investigations and trials involving these individual rioters continue, no paramilitary groups have yet been held meaningfully accountable at the organizational level.
There has been a complete lack of accountability for key members of the U.S. House of Representatives singled out by the January 6th Committee, including Rep. Kevin McCarthy (R-CA)—the recently deposed speaker of the House—and Rep. Jim Jordan (R-OH).
Introduction and summary
More than 2 1/2 years since the January 6 insurrection at the U.S. Capitol, the criminal justice system is starting to hold former President Donald Trump and his allies accountable for their wide-ranging plot to subvert the U.S. Constitution and overturn the 2020 presidential election. A Center for American Progress report published earlier this year considered what this accountability could look like, drawing on conclusions and recommendations from the final report of the bipartisan Select Committee to Investigate the January 6th Attack on the U.S. Capitol. The committee issued its report after conducting a thorough investigation into the conspiracy that led to one of the darkest days in U.S. history.1 As CAP wrote, “Trump’s unprecedented attempt to hold onto presidential power by any means necessary was deeply un-American, corrosive to democracy, and an affront to the rule of law.”2
In a strong U.S. democracy, citizens must be able to hold elected leaders of any political party accountable under the rule of law and the Constitution. The earlier CAP report discussed a series of recommendations, based in large part on the January 6th Committee report, for how law enforcement authorities and other stakeholders could hold parties accountable for their involvement in the January 6 insurrection.3 In promising news for the rule of law, over the past several months, federal and state authorities have initiated criminal proceedings—based on indictments handed up by grand juries comprised of everyday Americans—against Trump and many of the people who were instrumental to his plan to stop the peaceful transfer of power.
See also
Moreover, state-based disciplinary proceedings have been instituted or concluded involving almost all of Trump’s top attorneys; the U.S. Department of Justice has now charged and/or convicted more than 1,100 individual rioters; and multiple state and local officials are being investigated, charged, or punished for their roles in the plot to overturn the election results. That being said, not all involved parties are being held accountable at this point. For example, accountability has eluded the four congressmen whom the January 6th Committee referred to the House Ethics Committee for their refusal to honor valid committee subpoenas, including Rep. Kevin McCarthy (R-CA), who was Speaker of the House from January 2023 to October 2023, and Rep. Jim Jordan (R-OH), who as of publication is one of the top contenders to become the new speaker.4 Additionally, extremist paramilitary organizations have escaped accountability at the organizational level.
Background information on committee findings
The final report of the January 6th Committee, issued December 22, 2022, offered a roadmap to help protect a democracy designed to be anchored in the rule of law.5 Based on compelling evidence uncovered during nine televised hearings, the committee concluded that then-President Donald Trump spearheaded an unconstitutional and illegal plan, based on the “big lie” of widespread voter fraud, to hold onto presidential power at any cost, for which he was impeached by the U.S. House of Representatives in the weeks after the insurrection—his second impeachment.6 The committee’s evidence showed that Trump sat atop a multifaceted plot that included a multitude of principal allies and advisers, members of Congress, violent paramilitary groups and their members, state and local officials, and other supporters. In short, the committee’s investigation demonstrated how Trump waged an unprecedented attempt to invalidate millions of votes in the 2020 presidential election and thwart the right of the American people to choose their president—a bedrock of the nation’s democracy.
The nine-member January 6th Committee—led by Chair Bennie Thompson (D-MS) and Vice Chair Liz Cheney (R-WY)—mapped out the specific components of Trump’s broad conspiracy.7 The committee concluded that Trump and his allies attempted to discredit the election results, relying on the myth of widespread voter fraud; pushed state officials to reverse valid election results; arranged for people to sign documents presenting themselves as either duly authorized or potential alternate presidential electors—or “fake electors”—for Trump in seven states; enlisted a high-ranking U.S. Department of Justice official to support their claims of an invalid election; waged a relentless pressure campaign on Vice President Mike Pence to overturn the Electoral College results; and helped incite the deadly riot at the U.S. Capitol on January 6.8
The January 6th Committee made four criminal referrals of Trump and some of his top attorneys to the Department of Justice, while suggesting further investigations of two additional sets of crimes.9 The committee also supported using Section 3 of the 14th Amendment of the U.S. Constitution as a mechanism to permanently bar Trump and others from ever holding public office if they aided and abetted an “insurrection or rebellion” against the government or gave “aid or comfort” to people who did.10 Additionally, the committee referred to the House Ethics Committee four congressmen—then-Rep. McCarthy, Rep. Jordan, Rep. Andy Biggs (R-AZ), and Rep. Scott Perry (R-PA)—for their willful defiance of its lawful subpoenas.11 The committee also recommended that state disciplinary authorities punish Trump’s attorneys and that law enforcement entities prosecute individual rioters.12
The earlier CAP report supported the committee’s wide-ranging referrals and recommendations. It also called for extremist organizations such as the Proud Boys and Oath Keepers to be held accountable under the law at the organizational—not just the individual—level.13 Moreover, the report urged social media companies to reverse their decisions to allow Trump back onto their platforms, especially in light of his continued extremist and violent rhetoric.14 Finally, it discussed several ways that Trump’s state and local allies could be held accountable for any lawbreaking in which they engaged.15
Since that report was published in April, federal, state, and local authorities have taken crucial steps to hold Trump and his allies accountable. These steps, discussed in the sections below, are positive developments for the rule of law and for the health of democracy. But even more must be done. Without accountability, leaders will continue to propagate the destructive myth of rampant voter fraud; extremist lawmakers who propagate the “big lie” could continue in positions of public trust; politically violent rhetoric could proceed unabated, including against judges, prosecutors, jurors, and other public servants involved in election-related cases; and mob rule will seemingly become acceptable.16 All these factors contribute to Americans’ significant worries about the current state of democracy, which risks sliding toward autocracy.17
The months ahead will help determine the future of free and fair elections, as well as the health of the republic. In many ways, the effectiveness of the American justice system itself is on trial. Can the justice system bring a measure of accountability to people who stand indicted for breaking the law and violating the Constitution? Can it send a clear message that attempting to upend a free and fair election is intolerable? Can it show that public servants—no matter at which level of government they serve or to which political party they belong—must answer to the people?
Discussion
The following section provides updates about proceedings designed to hold legally accountable the people alleged to have led or participated in the plot to overturn the 2020 presidential election. These include Donald Trump; his attorneys and top advisors; members of Congress; individual rioters and paramilitary groups; and state and local officials.
It is important to note that in almost all the criminal or civil proceedings discussed below, Trump and his allies have denied any wrongdoing, except where specifically noted—for example, in cases where individual insurrectionists pleaded guilty to criminal charges. A hallmark of the American judicial system is that criminal defendants are entitled to the presumption of innocence, and the burden is on the government to prove guilt beyond a reasonable doubt. CAP does not presuppose ultimate criminal liability or punishment in any of the investigations, cases, or proceedings discussed below.
1. President Donald Trump
CAP’s April report recommended holding President Trump accountable under the law and Constitution in four main areas: federal criminal charges, state criminal charges, disqualification from holding public office under Section 3 of the 14th Amendment, and a limit on social media communications.18 The January 6th Committee detailed how Trump sat atop a wide-ranging scheme to thwart the presidential election results and interrupt the peaceful transfer of power, all built on destabilizing lies about widespread election fraud—falsehoods that Trump continues to propound.19 Trump also continues to praise the January 6 rioters.20 Without full accountability for Trump, the nation’s rule of law remains under deep threat, and U.S. democracy could be proved incapable of punishing people who try to subvert free and fair elections and the Constitution.
Nonetheless, in the past several months, there have been many developments toward accountability for Trump’s alleged actions—and these developments help support the foundational pro-democracy principle that no one should be above the law—not even a former president, regardless of their political affiliation. Important updates include those discussed in the subsections below.
Federal criminal charges
The January 6th Committee made several criminal referrals of Trump to the Department of Justice, which the April CAP report found to be well-grounded in fact and law.21 The referrals included the following four criminal statutes: obstruction of an 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); and incitement of insurrection against the United States (18 U.S.C. § 2383). The committee also found that, depending on further evidence developed by the Department of Justice, Trump may have violated the seditious conspiracy and other conspiracy statutes (18 U.S.C. §§ 372 and 2384). CAP supported these referrals, urging the Department of Justice to swiftly complete its ongoing investigations and, if appropriate, charge Trump with federal crimes.22
On August 1, 2023, a grand jury in Washington, D.C., handed up a four-count federal indictment against Trump, alleging that he led an illegal, multipronged conspiracy to overturn the results of the 2020 election, including attempting to block the counting of the valid electoral votes at the joint session of Congress on January 6.23 The four charges, formally announced by special counsel Jack Smith, include two of the committee’s key recommendations: obstruction of an official proceeding and conspiracy to defraud the United States. The grand jury also indicted Trump on two related charges: conspiracy to obstruct an official proceeding (18 U.S.C. § 1512(k)) and conspiracy against rights (18 U.S.C. § 241), a Civil War-era statute that has been invoked several times when a defendant was alleged to have conspired to prevent people’s lawful votes from being counted.24
Trump was arraigned on August 3, and he pleaded not guilty.25 The trial court judge set the trial date for March 4, 2024.26 On September 27, 2023, the trial court judge denied Trump’s motion that she recuse herself from the case based on his assertions that she is prejudiced against him.27
In denying any wrongdoing, Trump and his attorneys have raised in the media various defenses that he may ultimately use in court. These include arguments that: 1) Trump’s First Amendment political speech rights protected his activities; 2) he had a sincere belief that he won the election and was acting to protect his victory—and therefore lacked criminal intent; 3) he acted on the advice of counsel; and 4) presidential immunity protects him from prosecution for the alleged crimes, an argument at the center of his pending October motion to dismiss the indictment before the trial begins.28 Via social media, Trump asked the U.S. Supreme Court to intercede on his behalf.29 He also claimed that special counsel Smith is “deranged” and is part of a larger political witch hunt against him.30
In a separate criminal case headed by Smith unrelated to this election-related prosecution, a federal grand jury on June 8 indicted Trump and a co-defendant on 31 counts for, among other things, unlawfully taking and keeping top secret government documents and conspiring to obstruct the government from retrieving those documents.31 On July 27, prosecutors added more related charges against Trump through a superseding indictment, bringing the total to 40, and added a new co-defendant.32 As noted above, Trump has denied any wrongdoing. The trial court set a trial date of May 20, 2024.33
CAP also noted in its April report the pendency of another criminal proceeding against Trump.34 That month, a Manhattan, New York, grand jury handed up a 34-count felony indictment against the former president relating to hush money allegedly paid to an adult-film actress in 2016 and falsification of business records. Trump has denied any wrongdoing in this state case as well. The trial court judge set a trial date of March 25, 2024.35
This report does not address unrelated litigation in civil cases involving Trump, either ongoing or recently resolved.
State criminal charges
The January 6th Committee’s evidence showed that Georgia was a focal point of President Trump’s efforts to overturn the election results, with Trump and his allies placing unrelenting pressure on state and local officials. In perhaps the best-known example of such tactics, in a January 2, 2021, phone call with Georgia Secretary of State Brad Raffensperger, Trump stated, “I just want to find 11,780 votes, which is one more than we have.”36 The April CAP report urged prosecutors in Georgia to proceed expeditiously with their ongoing investigation and, if appropriate, bring criminal charges against Trump.37
On August 14, 2023, a grand jury in Fulton County, Georgia, indicted Trump and 18 allies on charges of violating 16 state statutes in their plot to sabotage the 2020 presidential election.38 As District Attorney Fani Willis remarked, “The indictment alleges that rather than abide by Georgia’s legal process for election challenges, the defendants engaged in a criminal racketeering enterprise to overturn Georgia’s presidential election result.”39 The indictment includes 41 total counts, including 13 against Trump, as well as 30 unindicted co-conspirators, who are not named.40 Prosecuting these defendants under Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act allows prosecutors to charge defendants for criminal acts that allegedly occurred both inside and outside Georgia in furtherance of the election subversion conspiracy.41
The 13 felony charges against Trump include: violation of the Georgia RICO Act; three counts of solicitation of violation of oath by public officer, including Trump’s phone call with Raffensperger; conspiracy to commit impersonating a public officer; two counts of conspiracy to commit forgery in the first degree; two counts of conspiracy to commit false statements and writings; conspiracy to commit filing false documents; two counts of false statements and writings; and filing false documents. District Attorney Willis alleges that these charges relate to four key schemes: 1) pressuring government officials to declare Trump the winner in Georgia; 2) arranging for fake electors; 3) illegally hacking into voting machines and obtaining sensitive software and voter data in rural Coffee County; and 4) obstructing the investigation through false statements, documents, and perjury.42
On August 24, Trump voluntarily surrendered at the Fulton County jail, where he was promptly released on bond.43 In denying any wrongdoing, Trump has claimed that this prosecution is a politically motivated “witch hunt,” that the charges are “bogus,” and that District Attorney Willis is “out of control and very corrupt.”44 In September, Trump filed motions to dismiss most of the charges, arguing, for example, that he was exercising his First Amendment political speech rights and that prosecutors failed to sufficiently allege the existence of a racketeering enterprise.45 The trial court judge set a trial date of October 23, 2023, for defendants Sidney Powell and Kenneth Chesebro, but ruled that Trump and the other defendants will be tried separately at a later date still to be determined.46 Although five of the defendants are attempting to move their cases from state court to federal court, Trump’s attorneys notified the trial court judge that the former president will not try to make a similar motion.47
Disqualification under Section 3 of the 14th Amendment
The January 6th Committee concluded that President Trump’s participation in the January 6 insurrection likely violated Section 3 of the 14th Amendment.48 This important provision, added to the Constitution after the Civil War to disqualify public officials who fought for the Confederacy from again holding office, was designed in part to hold public servants accountable when they “engaged in an insurrection” or gave “aid or comfort to the enemies” of the United States.49 Because no president should be above the law or the Constitution, CAP recommended in its April report that Trump be held appropriately responsible for his central role in the January 6 insurrection.50 While disqualifying someone from office under Section 3 should not be taken lightly, failure to do so in this case could set a dangerous precedent.
To date, no federal, state, or local authority has officially deemed Trump ineligible to hold public office under Section 3 of the 14th Amendment. However, noted legal experts from across the ideological spectrum have concluded that Trump’s actions related to the January 6 insurrection trigger this provision. These experts include, among many others, preeminent scholar Laurence Tribe of Harvard Law School, a progressive, and former federal circuit court judge J. Michael Luttig, a conservative, who together co-authored a thorough analysis of the issue.51 Law professors William Baude of the University of Chicago and Michael Stokes Paulsen of the University of St. Thomas—both members of the conservative Federalist Society—wrote a law review article showing that Section 3 forbids Trump from holding public office again.52 Some conservative scholars, on the other hand, have concluded that this theory likely would not survive a court challenge.53
In September, a group of voters in Colorado filed a lawsuit arguing that the Colorado secretary of state must find Trump ineligible to appear on the state’s primary ballot.54 A judge in a similar lawsuit last year removed County Commissioner Couy Griffin from office55 due to his participation in the January 6 insurrection. Days after the Colorado lawsuit was filed, voters in Minnesota and Michigan filed similar lawsuits.56 At the same time, a federal judge dismissed a similar lawsuit in Florida, finding that voters lacked legal standing to initiate that federal case.57
In recent weeks, several secretaries of state—from both political parties—have rejected requests to unilaterally remove Trump from the ballot, concluding that courts are the appropriate venues in which to decide whether the former president is disqualified from holding public office under Section 3 of the 14th Amendment.58
Trump’s social media communications
The April CAP report lamented the fact that although Trump continued to spew dangerous political rhetoric, every major social media company—including Meta (Facebook’s parent company), X (formerly known as Twitter), and YouTube—permitted Trump to return to their platforms after suspending him in the wake of the January 6 insurrection.59 CAP recommended that social media companies pay close attention to Trump’s posts and decisively act if the posts incite or encourage violence or otherwise violate the companies’ terms of service.
Trump continues to post extremist and incendiary messages on Truth Social, the social media platform he indirectly controls, often aimed at the judges, prosecutors, or potential witnesses involved in his criminal proceedings, some of whom now face serious threats to their lives.60 Since being reinstated to Facebook, YouTube, and X, Trump has engaged in heated rhetoric. For example, in a posting on X, he included his Fulton County mugshot and the message: “ELECTION INTERFERENCE. NEVER SURRENDER.”61 Thus far, social media companies have taken no reported actions against Trump for potentially violating policies. In two noteworthy developments, the trial court judge in the Fulton County case set strict rules limiting Trump’s usage of social media to intimidate potential witnesses or co-defendants or obstruct justice, and the trial court judge in the federal election-related case—who warned against Trump using “inflammatory” statements that may damage “the integrity” of the proceedings—announced that she will impose a tailored “gag order” on Trump after considering prosecutors’ contention that Trump continues to use “social media as a weapon of intimidation in court proceedings.”62
2. President Trump’s attorneys and top advisors
The April CAP report discussed at length the facts and recommendations in the January 6th Committee’s report regarding Trump’s attorneys and top advisors.63 These people were at the center of the plot to spread falsities and devise now-discredited theories to change the presidential election results. Among many top aides, these people included attorneys Rudy Giuliani, John Eastman, Kenneth Chesebro, Sidney Powell, and Jenna Ellis; former White House chief of staff Mark Meadows, top Department of Justice official and attorney Jeffrey Clark, and advisor Peter Navarro; and associates Steve Bannon, Roger Stone, and Michael Flynn. The committee determined that “sufficient evidence exists for a criminal referral of John Eastman and other unnamed Trump associates under 18 U.S.C. § 1512(c)” for obstructing an official proceeding.64 Moreover, it found that certain unnamed attorneys of President Trump may have violated the obstruction of justice statute at 18 U.S.C. § 1505.65 Finally, the committee concluded that “courts and bar disciplinary bodies responsible for overseeing the legal profession” should evaluate the conduct of Trump’s attorneys.66
At the time of CAP’s April report, some notable disciplinary actions had already occurred, although no criminal proceedings had been instituted to bring accountability to Trump’s attorneys and top advisors.67 For example, Giuliani’s license to practice law was temporarily suspended in New York state in June 2021. The California state bar filed disciplinary charges against Eastman in January 2023. Several weeks later, a Texas judge dismissed a petition brought against Powell by the State Bar of Texas Commission for Lawyer Discipline. In March, the Colorado Supreme Court censured Jenna Ellis, but allowed her to keep her bar license in good standing because she agreed that she made 10 specific misrepresentations.
As the CAP report stated, “the actions detailed in the committee’s report are affronts to the legal profession, and the people who carried them out must be held accountable for their roles in the plot.”68 The following subsections provide important updates regarding proceedings involving Trump’s attorneys and top advisors.
Federal criminal charges
CAP recommended that the Department of Justice thoroughly and swiftly investigate the attorneys and advisors named in the January 6th Committee’s report and bring appropriate criminal charges.
As discussed above, on August 1, 2023, a grand jury in Washington, D.C., handed up a four-count indictment against Trump, alleging that he led an illegal, multipronged conspiracy to overturn the results of the 2020 election. Importantly, this indictment includes six unnamed co-conspirators.69 Eastman confirmed that he is one of them.70 Giuliani’s attorney said that Giuliani appears to be an unnamed co-conspirator.71 Chesebro’s attorney admitted that Chesebro is an unindicted co-conspirator, per a reporter in the courtroom on October 10.72 According to experts who are closely following the case, two of the other three unnamed co-conspirators may be Powell and Clark, based on specific identifying facts.73 As is true in any criminal case, it is possible in the future that one or more unnamed co-conspirators could be named and formally charged. However, it bears repeating that all of the attorneys discussed here have denied any criminal wrongdoing and assert that they were providing Trump with legitimate legal counsel.74 In a related development in September, a federal jury found Peter Navarro, a former top Trump aide, guilty of contempt of Congress for refusing to cooperate with a lawful subpoena from the January 6th Committee; Navarro has appealed the conviction.75
State criminal charges
CAP recommended that similar to federal law enforcement authorities, state law enforcement authorities “should swiftly complete investigations and, where appropriate, bring charges against any of Trump’s attorneys and close advisers who helped him with his scheme to overturn the valid election results.”76
As discussed above, on August 14, a grand jury in Fulton County, Georgia, indicted Trump and 18 allies on violations of 16 Georgia statutes. At the heart of that case are indictments on charges alleging that they formed a criminal enterprise designed to keep Trump in power.77 The foundation of this sweeping indictment is Georgia’s RICO law, which allows all of the defendants to be charged for criminal acts that allegedly occurred both inside and outside Georgia to further the alleged election subversion conspiracy.
The 18 Trump allies span a range of seniority, from Trump’s inner circle to lower-level functionaries in Georgia. These co-defendants are: Giuliani; Meadows; Eastman; Chesebro; Powell; Clark; Ellis; Ray Smith, a Trump campaign lawyer; Robert Cheeley, a lawyer who promoted false election claims; Mike Roman, a Trump campaign official; David Shafer, a senior political official and alleged fake elector; Shawn Still, a state senator and alleged fake elector; Stephen Lee, a pastor connected with alleged intimidation of election workers; Harrison William Prescott Floyd, a Black Voices for Trump leader connected with alleged intimidation of election workers; Trevian Kutti, a publicist connected to alleged intimidation of election workers; Cathy Latham, an alleged fake elector tied to the Coffee County voting equipment breach; Scott Hall, a Georgia bail bondsman tied to the Coffee County voting equipment breach; and Misty Hampton, a former Coffee County elections supervisor, who allegedly was involved with the voting equipment breach.78
The indictment charges each co-defendant with a set of alleged crimes, with every co-defendant accused of violating Georgia’s RICO law. For example, Giuliani is charged with 13 crimes, including violating Georgia’s RICO law, three counts of solicitation of violation of oath by a public officer, three counts of false statements and writings, conspiracy to commit impersonation of a public officer, two counts of conspiracy to commit forgery in the first degree, and conspiracy to commit filing false documents.79 By contrast, Mark Meadows is charged with two crimes: violating Georgia’s RICO law and one count of solicitation of violation of oath by a public officer.80
As noted above, the trial court judge set a trial date of October 23 for Sidney Powell and Kenneth Chesebro but ruled that Trump and the other defendants will be tried separately at a later date.81 Five defendants, including Meadows and Clark, are attempting to move their cases from Georgia state court to federal court.82 On September 29, co-defendant Scott Hall pleaded guilty to five misdemeanor counts of conspiracy to commit intentional interference with performance of election duties and agreed to testify in the trials of the other co-defendants.83
Revocation of license to practice law
The January 6th Committee concluded that “[a]ttorneys should not have the discretion to use their law licenses to undermine the constitutional and statutory process for peacefully transferring power in our government.”84 CAP agreed in its April report and recommended that courts and bar disciplinary bodies that oversee the legal profession in any relevant jurisdiction consider appropriate accountability, including possibly revoking the law licenses of Trump’s attorneys.85
Attorneys should not have the discretion to use their law licenses to undermine the constitutional and statutory process for peacefully transferring power in our government.
– Final report of the Select Committee to Investigate the January 6th Attack on the United States Capitol
Many of the key attorneys discussed in CAP’s prior report have faced consequences for their roles in the unconstitutional plot to overturn the 2020 presidential election:
- Rudy Giuliani. A New York state appeals court temporarily suspended Giuliani’s law license in 2021, and the state is still considering whether to make this permanent.86 In July, the D.C. Bar’s board of professional responsibility recommended that Giuliani be permanently disbarred after his law license there was suspended in July 2021.87 The board concluded that Giuliani’s actions in bringing a lawsuit in Pennsylvania to contest the election results were “unparalleled in [their] destructive purpose and effect. He sought to disrupt a presidential election and persists in his refusal to acknowledge the wrong he has done.”88 However, Giuliani did admit in a defamation case that he told lies about Georgia election workers Ruby Freeman and Wandrea “Shaye” Moss.89 Giuliani conceded that he made false statements, which he claims were constitutionally protected, when he asserted that Freeman and Moss engaged in fraud during the 2020 election; his claims led to violent and racist threats and harassment, about which Freeman and Moss vividly testified before the January 6th Committee.90
- Sidney Powell. Although Powell was not sanctioned in Texas and remains free to practice law there, on May 1, the Michigan Attorney Grievance Commission filed a complaint against her with the state’s Attorney Discipline Board.91 The commission recommended disciplinary action against Powell and her team of lawyers, who filed a frivolous lawsuit built on the “big lie” to overturn the 2020 election.92
- Jenna Ellis. As noted above, Ellis was censured by the Colorado Supreme Court, but no known disciplinary proceedings are pending elsewhere.93
- John Eastman. In June, a California disbarment trial began in Eastman’s case, where state bar authorities are seeking to strip his law license, claiming he acted with “dishonesty and moral turpitude.”94 The trial was briefly suspended in August so Eastman could surrender in the Fulton County case.95
- Kenneth Chesebro. In October 2022, several dozen prominent legal figures filed an ethics complaint with the attorney grievance committee of the New York Supreme Court, asking for an investigation into Chesebro’s fitness to practice law and appropriate sanctions.96 A determination in the proceeding does not yet appear to have been reached.
- Jeffrey Clark. Clark, the senior Department of Justice official who the January 6th Committee found to have played a pivotal role in Trump’s attempts to have the department support his lies about election fraud, faces charges from the D.C. Bar’s Office of Disciplinary Counsel, which filed a complaint against him in July 2022.97 In June 2023, a federal judge rejected Clark’s argument that the proceeding should be transferred to federal court.98 As of July, the proceeding against him is moving forward.99
- Boris Epshteyn. In March 2022, the nonprofit organization 65 Project filed a complaint against Epshteyn with the Attorney Grievance Committee of the New York Supreme Court, asking for an investigation and appropriate discipline.100 Epshteyn is a long-time close aide and attorney to Trump.101
- Cleta Mitchell. In March 2022, 65 Project filed a similar complaint against Cleta Mitchell, one of Trump’s attorneys, with the D.C. Bar’s board of professional responsibility.102
3. Members of Congress
The January 6th Committee’s report painted a compelling picture of how several members of Congress played important roles in Trump’s conspiracy to overturn the results of the 2020 election, while others tried to thwart the committee’s lawful, bipartisan investigation. As CAP discussed in its April report, the committee focused on four House members who deserve to face accountability for their anti-constitutional behavior: Reps. McCarthy, Jordan, Perry, and Biggs. For example, according to the January 6th Committee, Rep. Jordan “was a significant player in President Trump’s efforts,” which included Jordan participating in multiple post-election meetings with senior White House officials to discuss strategies to challenge the election; leading a conference call on January 2, 2021, with Trump and other members of Congress to discuss how to delay the January 6 joint session of Congress; conducting multiple phone calls with Trump and Giuliani on January 6; and speaking “with White House staff about the prospect of Presidential pardons for Members of Congress.”103
If left unpunished, such behavior undermines Congress's longstanding power to investigate in support of its lawmaking authority and suggests that Members of Congress may disregard legal obligations that apply to ordinary citizens.
– Final report of the Select Committee to Investigate the January 6th Attack on the United States Capitol
Because these four lawmakers defied committee subpoenas after being asked to voluntarily give relevant testimony, the committee referred them to the House Ethics Committee for discipline.104 The January 6th Committee wrote that the House members’ refusal to comply with subpoenas violated the rules of their chamber and discredited Congress—something that if left unpunished, “undermines Congress’s longstanding power to investigate in support of its lawmaking authority and suggests that Members of Congress may disregard legal obligations that apply to ordinary citizens.”105
Despite the committee’s recommendations, Rep. McCarthy was elected Speaker of the House in January of 2023.106 Upon his election, he promptly chose Rep. Jordan to chair both the powerful House Judiciary Committee and a new Select Subcommittee on the Weaponization of the Federal Government. As head of this subcommittee, Rep. Jordan has issued multiple subpoenas in his ongoing investigations of the Department of Justice, FBI, and other law enforcement entities.107 On August 24, Rep. Jordan opened an inquiry into Fulton County District Attorney Fanni Willis, questioning whether she had collaborated with Jack Smith’s federal investigation and accusing her of posing “a threat to the operations of the federal government.”108 In a response, District Attorney Willis accused Rep. Jordan of potentially abusing his authority via an “attempt to obstruct and interfere with a Georgia criminal prosecution.”109
CAP wrote in its April report that rewarding then-Speaker McCarthy and Rep. Jordan “with leadership positions or assume that they will conduct impartial oversight makes a mockery of democracy.”110 Their elevation into positions of power, including the speakership, has mainstreamed their political extremism and tolerance of the insurrection, while sending an alarming signal that members of Congress are above the law.
In light of these and other facts, CAP’s April report recommended a range of actions, discussed below.
Accountability from the House Ethics Committee
As discussed above, the January 6th Committee recommended that the House Ethics Committee hold Reps. McCarthy, Jordan, Perry, and Biggs accountable for defying the subpoenas, with which CAP agreed.111 Assuming the accuracy of the facts that the January 6th Committee revealed, the Ethics Committee ideally would vote to expel these members, but at the very least, the House would strip these members of any leadership and committee positions.
It is unclear whether the House Ethics Committee has taken any action on the four referrals it received.112 That committee, comprised of an equal number of Republicans and Democrats, works in secrecy and does not regularly disclose ongoing investigations. No Ethics Committee votes have been publicly disclosed. Furthermore, there have been no public reports about any House members being sanctioned for their involvement in the wide-ranging January 6 conspiracy or attempts to hinder the subsequent lawful House investigation.
House members should be questioned on the record
CAP recommended that House members beyond the four referred to the Ethics Committee should be questioned by relevant committees in open settings about their roles in the Trump conspiracy and any obstruction of the January 6th Committee’s investigation.113 Any House members determined to have aided or abetted the insurrection could be stripped of their committee assignments, have their office budgets reduced, or face formal censure by the full House.
It appears that the House has taken no action in this regard.
Prosecution of members of Congress
CAP recommended that federal, state, and local prosecutors investigate and, where appropriate, prosecute members of Congress who may have broken laws during President Trump’s conspiracy and its aftermath.114 The April report noted that the Department of Justice was investigating Rep. Perry for his role, and litigation continues regarding the department’s attempts to access his phone records.115 Additionally, the April report discussed the fact that the Fulton County district attorney compelled several members of Congress—including Sen. Lindsey Graham (R-SC) and former Rep. Jody Hice (R-GA)—to testify in grand jury proceedings.116
It appears that no law enforcement authorities have yet charged a member of Congress with criminal wrongdoing. The Fulton County indictments do not name any members of Congress as defendants, although it is possible that one or more may be an unnamed, unindicted co-conspirator.
Bar disciplinary proceedings
CAP recommended that state bars or relevant authorities investigate and hold accountable members of Congress who are licensed attorneys and played a role in Trump’s conspiracy, including via potential disbarment.117
It appears at this time that no member of Congress has faced such accountability.
Accountability for senators
CAP recommended that relevant Senate committees investigate the potential misconduct of senators and others who aided the Trump conspiracy or helped with efforts to invalidate electoral slates.118
It appears at this time that no senator has faced such accountability.
Disqualification under Section 3 of the 14th Amendment
CAP recommended that any members of Congress who violated the disqualification clause of Section 3 of the 14th Amendment due to their involvement in the insurrection should be expelled from Congress.119 The April report noted that in years prior to the insurrection, both the Senate and House refused to seat such individuals.120
At this time, no member of Congress has faced such accountability for their role in the January 6 insurrection.
4. Individual rioters and paramilitary groups
As CAP’s April report stated, “the riot at the Capitol depended on loyal foot soldiers, including extremists, white supremacists, and paramilitary organizations, who violently stormed the seat of Congress, inspired by Trump’s words, to disrupt the counting of electoral votes.”121 The Proud Boys and Oath Keepers, two of the best-known paramilitary groups involved, organized themselves at the highest levels, throughout their ranks, and across groups to stop the peaceful transition of presidential power by any means.122 The anti-democracy threats that these and other violent white supremacist organizations pose remain a potent force. As stated in CAP’s previous report, “If insurrectionists and paramilitary organizations are not held accountable, America runs the risk of mainstreaming their views and further subverting democracy.”123
The April CAP report recommended a wide range of potential accountability measures for individual insurrectionists and their related organizations. These are updated in the following subsections.
Federal criminal proceedings
The January 6th Committee recommended that the Department of Justice use all available laws and tools to continue to track down, investigate, prosecute, and hold accountable the people who helped plan and execute the January 6 insurrection, a recommendation that CAP endorsed.124 CAP also recommended the creation or use of appropriate civil enforcement mechanisms that would allow the department to seek remedies against rioters and their paramilitary organizations.125
The Department of Justice continues to investigate, charge, prosecute, and convict individual insurrectionists.126 According to a recent NPR analysis of information published by the Department of Justice, approximately 1,166 people have been charged with federal crimes, and approximately 831 defendants have been convicted.127
The prior CAP report discussed the November 2022 seditious conspiracy convictions of Stewart Rhodes, the founder of the Oath Keepers, and Kelly Meggs, one of the group’s top deputies.128 It also mentioned that the Department of Justice was prosecuting Proud Boys leader Enrique Tarrio and four of his lieutenants for their roles in the insurrection.129
On May 4, 2023, after a four-month trial, a jury convicted Tarrio and his four co-defendants on multiple criminal charges.130 These include convictions on the most serious charge of seditious conspiracy for Tarrio and three co-defendants, while another co-defendant was convicted of lesser charges, including obstruction of an official proceeding and destruction of federal property.131 This development means that the Department of Justice has now secured seditious conspiracy convictions against the leaders of two of the nation’s most high-profile extremist organizations. Attorney General Merrick Garland commented that the verdicts “make clear that the Justice Department will do everything in its power to defend the American people and American democracy.”132 Several months later, in September, the five Proud Boys defendants mentioned above were all sentenced to multiple years in prison, with Tarrio receiving 22 years—the longest sentence imposed thus far for anyone involved in the insurrection.133
Also in May, Oath Keepers leader Stewart Rhodes was sentenced to 18 years in prison, while Kelly Meggs was sentenced to 12 years.134 These criminal sentences reportedly were the first seditious conspiracy sentences imposed in the nation in more than a decade.135 The sentencing judge told Rhodes that his offenses were “among the most serious crimes an American can commit” and “amounted to domestic terrorism.”136 Attorney General Garland said, “Today’s sentences reflect the grave threat the actions of these defendants posed to our democratic institutions.”137 In May and June, several other Oath Keepers received multiyear prison sentences for their roles in the January 6 insurrection.138
There are no known examples of prosecutions of paramilitary groups at the organizational level. Moreover, Congress has not passed new legislation creating applicable civil enforcement mechanisms, and the Department of Justice has not yet used existing legal authorities to seek such remedies against rioters and their paramilitary organizations. In July, however, Oregon passed a law creating a civil enforcement mechanism that permits the state attorney general to seek a court order where there is “reasonable cause to believe that a person or group of persons has engaged in, or is about to engage in, paramilitary activity.”139 The legislation also provides individuals “injured as a result of paramilitary activity” the ability to seek a court injunction by filing a lawsuit.140 An ideologically broad range of groups supported this important legislation, ranging from the National Rifle Association to the American Civil Liberties Union.141
State-based law enforcement and litigation
CAP recommended that wherever possible, state law enforcement authorities and other stakeholders aggressively use enforcement actions and litigation to prevent unauthorized paramilitary activities—which are not protected by the Second Amendment—and hold law-breaking groups accountable.142
There have been no high-profile state cases of this nature. Nonetheless, in addition to the new civil enforcement law that Oregon passed, Vermont passed an important new law that makes it a crime to own or operate paramilitary training camps or to provide firearms training for anti-government paramilitary activities.143 In other positive news, a harmful Idaho bill that would have repealed the state’s anti-militia law, which CAP discussed in its previous report,144 did not become law.145
Money damages flowing from unauthorized paramilitary activities
CAP recommended that states and municipalities consider suing paramilitary organizations for the costs associated with their violent activities.146 For example, in late 2021, Washington, D.C., launched a civil suit against the Proud Boys and Oath Keepers to recoup the millions of dollars that the city spent to defend the Capitol on January 6.147 The case remains pending, but a trial date has not yet been set.148 There are no known similar cases pending in other jurisdictions. But relatedly, in July, a judge awarded more than $1 million to a Black church in Washington, D.C., that had sued the Proud Boys for burning the church’s Black Lives Matter banner during a day of violent clashes with police in December 2020 and subsequently leaving threatening voicemail messages.149 The judge ruled that the attack on the church was “hateful and overtly racist” and “resulted from a highly orchestrated set of events focused on the Proud Boys’ guiding principles: white supremacy and violence.”150 In a 2021 criminal proceeding, Enrique Tarrio, who admitted burning the church’s banner, was sentenced to five months in jail for the crime, in addition to the crime of illegally possessing a high-capacity gun magazine in Washington, D.C.151
RICO laws
CAP recommended that, where appropriate, the Department of Justice use RICO laws to indict and, if found guilty, convict the top leaders of paramilitary groups.152 The April CAP report pointed out that some paramilitary groups are arguably being run as criminal enterprises with a pattern of racketeering crimes, including obstructing official government proceedings—in this case, on January 6.153
There are no reported cases of the Department of Justice using the federal RICO statute for these purposes. Yet in one notable development, the Fulton County district attorney is prosecuting Trump and 18 of his allies on state RICO charges, alleging that they ran a sprawling, multistate criminal enterprise aimed at overturning the valid election results.
Tax-exempt status
As CAP noted in its prior report, many organizations alleged to be violent hate groups enjoy tax-exempt charitable status from the IRS or state agencies, including operating with either 501(c)(3) or 501(c)(4) tax-exempt status from the IRS.154 CAP recommended that the “IRS and state agencies should consider revoking nonprofit status from organizations where clear and compelling adjudicated facts show that organizational leaders or resources were used to help commit seditious behavior.”155 It is imperative that “consistent with the First Amendment, revocations must not be based on the political views espoused by tax-exempt organizations.”156
Since the April CAP report, there have been no high-profile cases of federal or state governments revoking organizations’ nonprofit status under the circumstances described above. However, the author did not perform exhaustive research in this area.
Corporate status
CAP recommended that federal and state authorities appropriately use the full range of potential penalties against paramilitary and hate groups convicted of crimes, where those groups are organized as corporations.157 Penalties traditionally can range from fines and probation all the way to permanent injunctions and forced dissolution of the organization.
There have been no high-profile federal or state penalties of this nature.
5. State and local officials
As CAP discussed in its prior report, and as the January 6th Committee found, Trump’s broad conspiracy to overrule the will of the people depended on the participation of state and local officials in multiple battleground states.158 The crux of the conspiracy was to stop states from certifying their valid election results and to create alternate slates of fake Trump electors, with much of the conspiracy based on the lie of widespread election fraud. Although some state and local officials refused to participate in this scheme, many cooperated, becoming indispensable players in the anti-democracy plan.
The January 6th Committee did not specifically recommend accountability measures for such state and local officials.159 But it did suggest that the Department of Justice investigate and prosecute any people who aided Trump’s election sabotage plans.160 Similarly, CAP’s April report concluded that “[f]ederal, state, and local prosecutors should swiftly investigate and, where appropriate, prosecute state and local officials, as well as disqualify such officials from holding any public office under the 14th Amendment.”161 The CAP report discussed multiple instances where state and local officials were held accountable and the rule of law was upheld. It emphasized that without further accountability, U.S. democracy risks “dangerous repercussions and potentially embolden future attempts at election subversion.”162
CAP recommended a wide range of potential accountability measures for state and local officials and related actors. Updates are provided in the following subsections.
Federal, state, and local prosecutions
CAP recommended that federal, state, and local prosecutors investigate and, where appropriate, prosecute state and local officials who participated in Trump’s conspiracy.163 The report discussed, for example, Michigan Attorney General Dana Nessel’s (D) state investigation into individuals who signed a false pro-Trump electors’ certificate.164 It also noted that the Department of Justice had subpoenaed several Arizona Republican state legislators in its federal investigation.165
In positive news for accountability and the rule of law, multiple jurisdictions have initiated criminal proceedings implicating state and local officials and other people allegedly instrumental to schemes to produce fake electors. These criminal proceedings include the following:
- In July, Michigan Attorney General Nessel filed criminal charges against 16 people who signed an electors’ certificate on behalf of Trump.166 The charges include forgery and conspiracy to commit election forgery. The defendants include Amy Facchinello, a Grand Blanc, Michigan, school board member; Kent Vanderwood, mayor of Wyoming, Michigan; and Stan Grot, town clerk of Shelby Township, Michigan.167 All 16 defendants pleaded not guilty.168 Days later, the Michigan Bureau of Elections decided to prohibit Grot from exercising his duties to run elections in Shelby Township while the criminal charges against him are pending.169 Grot received a letter from the secretary of state’s office saying that his alleged role in the fake elector plan “undermines voter confidence in the integrity of elections.”170 Grot reportedly said that he will abide by the state’s request.171 On October 6, 2023, a judge ruled against two of the defendants who had asked that the charges be dropped.172
- In August, a Michigan special prosecutor charged two Trump allies with criminal violations relating to alleged efforts to obtain and damage voting machines after the 2020 election.173 Republicans Matthew DePerno, a former candidate for attorney general, and Daire Rendon, a former state representative, allegedly were part of the Trump team’s plot to breach voting machines to show that Trump won the election in Michigan.174
- Arizona Attorney General Kris Mayes’ office is investigating the fake elector scheme that allegedly unfolded in that state.175 Investigators reportedly have assigned a team of prosecutors to the case and are contacting Trump electors.176 As Attorney General Mayes commented, “There has to be a deterrent to this happening again. … We can’t have this occurring again in Arizona – or in the country.”177 Two fake electors, former Arizona state Senate President Karen Fann (R) and former state Sen. Kelly Townsend (R), received federal grand jury subpoenas in July 2022 regarding their role in the fake elector scheme.178
- In the ongoing Department of Justice probe into Trump’s wide-ranging conspiracy, federal law enforcement officials issued subpoenas in July to the secretary of state’s offices in Georgia and Arizona, requesting a range of information related to the conspiracy to overturn the election.179
- In August, Wisconsin Attorney General Josh Kaul said he is “not ruling out a state probe” of Trump’s alleged Wisconsin-based scheme and remarked that any people “who committed crimes with the goal of overturning the results of the election should be held accountable.”180 This statement came at the same time a state judge allowed a lawsuit to proceed in which two Wisconsin Biden electors and one voter sued the 10 alleged fake Trump electors in the state, claiming they are seeking “accountability and to make sure this doesn’t happen again.”181
- As noted above, the Fulton County prosecution involves Trump and 18 co-defendants, including Shawn Still, a Republican state senator, and Misty Hampton, former elections director of Coffee County, Georgia, as well as several Republican Party officials.
- New Mexico Attorney General Raúl Torrez is investigating Trump allies in that state, as of August, after special counsel Jack Smith’s federal indictment and the Fulton County indictments mentioned New Mexico as part of Trump’s plot to overturn the election.182 Torrez’s office stated that “now that Special Counsel Jack Smith has unsealed a federal indictment referencing specific conduct in New Mexico, we will work with his office to obtain any and all evidence relevant to the state’s inquiry.”183
- In August, the Prosecuting Attorneys Council of Georgia, a state agency, announced that it will appoint a special prosecutor to investigate the role that Georgia Lt. Gov. Burt Jones (R), an alleged fake Trump elector who was a Republican state senator at the time, may have played in Trump’s post-election scheme.184 One media outlet identified Lt. Gov. Jones as possibly being “individual 8,” one of the unindicted co-conspirators in the Fulton County indictment.185 In September, Lt. Gov. Jones asserted in a media interview that none of his actions surrounding the 2020 election were illegal.186
- In September, Nevada Attorney General Aaron Ford stated that he continues to consider whether to initiate criminal proceedings against the six alleged fake electors who promised their votes to Trump.187 Earlier, Attorney General Ford had pledged to continue to assist the Department of Justice in its ongoing investigation.188
Disqualification under Section 3 of the 14th Amendment
CAP recommended that stakeholders follow the lead of New Mexico, where state courts ruled that a county commissioner involved in the January 6 insurrection was ineligible under Section 3 of the 14th Amendment to hold any state public office or employment.189 CAP also recommended, where appropriate, the use of state “quo warranto” laws, as well as enacting state legislation to more easily effectuate the 14th Amendment’s disqualification clause, although such legislation is not strictly necessary.190
There has been no further action in this area. However, as discussed above regarding Trump, multiple paths are being considered to hold the former president constitutionally accountable under Section 3 of the 14th Amendment.
State legislatures holding Trump allies accountable
CAP recommended that state legislatures utilize a broad array of available penalties, where appropriate, to hold state lawmakers accountable for their roles in Trump’s conspiracy, generally ranging from censure to removal from office.191
There have been no high-profile actions in this regard. However, in April, the Arizona House of Representatives acted on a bipartisan basis to expel Rep. Liz Harris (R)—holding her accountable for pushing baseless claims about voter fraud in the 2020 and 2022 elections.192
Bar disciplinary proceedings
CAP recommended that state bar disciplinary authorities investigate and, where appropriate, hold accountable state and local officials who are licensed attorneys and participated in the Trump conspiracy.193
There have been no high-profile proceedings against state or local officials in this regard. However, as discussed above, bar disciplinary authorities are investigating or have held accountable many of Trump’s top attorneys, including Rudy Giuliani.
Conclusion
The United States is the oldest continuing democracy in the world. Yet democracy is ever evolving and fragile. In order to thrive, its citizens must be able to exercise their right to hold elected leaders—even their presidents—accountable under the law. Governance without the rule of law invites chaos and political extremism. Two-and-a-half years after the deadly January 6 insurrection at the U.S. Capitol, the justice system is responding to demands to hold former President Donald Trump and his allies accountable. The next many months will be pivotal to the nation’s nearly 250-year-old democratic experiment.