Introduction and summary
More than two years have passed since the January 6 insurrection at the U.S. Capitol, the central event in the sprawling plot of former President Donald Trump and his allies to subvert the U.S. Constitution and overturn the valid 2020 presidential election. Four months have elapsed since the bipartisan Select Committee to Investigate the January 6th Attack on the U.S. Capitol completed its investigation into the conspiracy that led to one of the darkest days in U.S. history. 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. Yet the scheme to destabilize the democratic system for political purposes continues in various ways, representing a clear and present danger to the republic. It is high time that Trump and his allies are held fully accountable.
The failure thus far to do so is leading to predictable and perilous consequences. Trump continues to promote the “big lie” that the 2020 election was stolen and call for the suspension of parts of the U.S. Constitution. Moreover, the advisers and attorneys who knowingly aided Trump’s conspiracy remain largely free to practice law, continuing their careers as they spread dangerous election-related disinformation. It is not known how many of these lawyers are still working for Trump. Key members of the U.S. House of Representatives, who aided and abetted the insurrection and who the January 6th Committee referred for ethics investigations, now lead the House and high-profile panels that have been weaponized against the committee, the U.S. Department of Justice, and the FBI. Other foot soldiers in Trump’s plot—including white supremacist groups, countless individual insurrectionists, and various state and local officials—remain, to varying degrees, unaccountable and unrepentant, further dividing America and undermining faith in elections.
Then, in January 2023, insurrection was exported to Brazil, after supporters of Jair Bolsonaro, that nation’s former president and Trump’s close ally, stormed the Congress and presidential palace, claiming that the valid recently conducted election was stolen from Bolsonaro.1
The scheme to destabilize the democratic system for political purposes continues in various ways, representing a clear and present danger to the republic. It is high time that Trump and his allies are held fully accountable.
This report explores the imperative to hold Trump and those who were found to have aided and abetted him at the federal and state level accountable, recommending specific actions that law enforcement authorities and other entities should take. The report relies primarily on the compelling factual findings and powerful recommendations of the January 6th Committee. It also describes legal arguments and allegations at issue in various investigations and court cases. The report concludes that full accountability for Trump and his allies would include the following:
- Federal, state, and local law enforcement authorities—including the U.S. Department of Justice and the Fulton County, Georgia, district attorney—should swiftly complete investigations and, where appropriate, bring charges against Trump. Under the 14th Amendment to the U.S. Constitution, Congress and, where possible, states should disqualify Trump from holding public office. In a noteworthy development not directly related to the plot to overturn the 2020 election, a Manhattan, New York, grand jury delivered a 34-count felony indictment against Trump in early April 2023 relating to hush money paid to an adult-film actress days before the 2016 election; Trump pleaded not guilty and disparaged the prosecutor, the judge overseeing the case, and their families.2
- Federal and 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. Where warranted, courts and bar disciplinary bodies should sanction or disbar them.
- The House Ethics Committee should hold accountable any House members who defied lawful subpoenas and breached House rules. This may include Speaker Kevin McCarthy (R-CA), who was found by the January 6th Committee to have defied a lawful committee subpoena and brought disrepute on the House. Relevant members, where appropriate, should face expulsion, loss of leadership or committee positions, or prosecution by law enforcement authorities.
- Federal authorities should aggressively track down, investigate, and prosecute individual insurrectionists and their organizations, including by using Racketeer Influenced and Corrupt Organizations Act (RICO) statutes, where appropriate. State authorities should hold organizations responsible and financially liable for unauthorized paramilitary activities, and federal and state authorities should use the full range of potential penalties against organizations set up as corporations.
- Federal, 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.
If the American justice system does not bring accountability to those who broke the law and violated the U.S. Constitution, it will be unable to move past the grave fallout from the insurrection and send an unequivocal message that such an event cannot occur again in a fair and representative democracy. No one—not even a former president—is above the law.
January 6 Hearings
Learn more about the January 6th Committee hearings
Background on the findings of the January 6th Committee
In late 2022, the January 6th Committee concluded its history-making investigation, which spanned a year and a half. The investigation was a watershed event with deep ramifications for the future of U.S. democracy: Compelling evidence presented to the American people over the course of nine public hearings demonstrated that Trump spearheaded an unconstitutional and illegal plan to hold onto presidential power at any cost, for which he was impeached in the weeks after the insurrection—his second impeachment.3 Aided by key allies and advisers, members of both the House and Senate, violent paramilitary groups, state and local officials, and other supporters, Trump trampled on the rule of law in an unprecedented attempt to invalidate millions of votes in the presidential election and thwart the will of the American people to duly choose their leader, a hallowed American tradition.
In a report released on December 22, 2022, the nine-member January 6th Committee—led by Chair Bennie Thompson (D-MS) and Vice Chair Liz Cheney (R-WY)—painstakingly detailed the components of Trump’s conspiracy.4 Months before the November 2020 election, Trump began perpetuating a series of lies, warning that if he was not reelected, his loss would be due to widespread voter fraud, as well as a biased news media that reported “fake news,” federal and state officials who wanted to see him defeated at any cost, and untrustworthy election infrastructure prone to foreign interference.5
U.S. democracy is at risk of sliding toward autocracy under the immense pressures of election lies and disinformation, dangerous conspiracy theories, political extremism, mob rule, and white supremacist-inspired violence.
The committee, whose work was conducted in part by nonpartisan former prosecutors, carefully laid out Trump’s plot, which “recklessly blazed a path of lawlessness and corruption.”6 Over the course of nine public hearings, the committee focused on the following key elements:
- Even though Trump and his allies knew that he had lost the valid election, they engaged in a massive effort—sometimes called the “big lie”—to spread disinformation to convince the American people that the election was rigged, even as multiple judges nationwide rejected Trump’s challenges to the legitimate results.7
- Trump, advised by attorneys Rudy Giuliani, John Eastman, and several others, waged a relentless pressure campaign to try to persuade Vice President Mike Pence to unconstitutionally refuse to both count the valid electoral votes on January 6 and peacefully begin the transfer of power to Joe Biden.8
- Trump corruptly pressured and threatened legislators and election officials in battleground states to change valid election results, placing many of their lives at risk. He and his top allies also instructed Republican officials in those states to create false electoral slates to certify Trump won the states’ electoral votes.9
- Trump attempted to replace U.S. Attorney General William Barr with Jeffrey Clark, who was sympathetic to Trump, and to weaponize the U.S. Department of Justice to spread his false claims that the election had been stolen.10
- Trump summoned a violent mob, including white supremacist groups, to Washington, D.C., on January 6 and then brazenly directed them to march on the U.S. Capitol after his election lies further enflamed them.11
- When the mob caused deadly violence at the Capitol, Trump deliberately chose not to call it off, despite repeated pleas from top officials, directly risking the lives of members of Congress, Capitol Police officers, Pence, and many others and disrupting the time-honored step toward a peaceful transition of power.12
- Many members of Congress were involved in the conspiracy and later thwarted the January 6th Committee’s legitimate investigation, even defying lawful committee subpoenas. Multiple members of the House sought presidential pardons for their roles in Trump’s sprawling scheme.13
In its report, the January 6th Committee recommended a range of actions and reforms to help prevent an attempted coup from happening again.14 Many of these recommendations centered on necessary legislative reforms, improvements to intelligence-gathering and Capitol security, and steps to reduce political extremism, white supremacy, and violence. While essential, most of those actions are outside the scope of this report.
This report instead focuses on the committee’s most powerful recommendations—those regarding legal accountability for Trump and others involved in his conspiracy. The January 6th Committee made four criminal referrals of Trump and some of his top attorneys to the Department of Justice, with suggestions for further investigations of two other sets of crimes. The committee also discussed the 14th Amendment 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. Additionally, the committee referred four congressmen—Kevin McCarthy (R-CA), Jim Jordan (R-OH), Andy Biggs (R-AZ), and Scott Perry (R-PA)—to the House Ethics Committee for their willful defiance of the committee’s lawful subpoenas. The committee also called for appropriate entities, such as state bars, to punish Trump’s attorneys, as well as on law enforcement entities to hold insurrectionists who participated in the Capitol riot legally accountable.
If there is no accountability for January 6th, for every part of this scheme, I fear that we will not overcome the ongoing threat to our democracy. There must be stiff consequences for those responsible.
January 6th Committee Chair Bennie Thompson (D-MS)
One month before the committee issued its final report, Attorney General Merrick Garland appointed a special counsel, Jack Smith, to oversee the Department of Justice’s ongoing investigation into the events related to January 6. This investigation appears to be very active, recently issuing subpoenas for Mike Pence, Jared Kushner, and Ivanka Trump, as well as top advisers to the former president.15 In the past months, several-hundred individual rioters have pleaded guilty to federal criminal charges stemming from the riot or have been successfully prosecuted.16 Meanwhile, top Trump ally Steve Bannon was convicted for contempt of the committee’s lawful subpoenas,17 and Trump adviser Peter Navarro is facing a contempt trial.18 The committee’s evidence has also aided related state and local investigations.19
But much more needs to be done to hold Trump and his allies who facilitated this plot fully accountable—and it must be done quickly. The myth of widespread voter fraud is still spreading, violent political rhetoric is being spewed, and extremist candidates who believe the “big lie” have been elected to positions of public trust, often pushing legislation aimed at subverting elections.20 U.S. democracy is at risk of sliding toward autocracy under the immense pressures of election lies and disinformation, dangerous conspiracy theories, political extremism, mob rule, and white supremacist-inspired violence. It is little wonder that the majority of Americans are demanding accountability.21
With every effort to excuse or justify the conduct of the former president, we chip away at the foundation of our republic.
January 6th Committee Vice Chair Liz Cheney (R-WY)
With the world watching to see what occurs next, the powerful words of the January 6th Committee’s Democratic chair and Republican co-chair are especially noteworthy.
During the eighth committee meeting, Chair Thompson said:
These facts have gone undisputed, and so there needs to be accountability, accountability under the law, accountability to the American people, accountability at every level, from the local precincts in many states where Donald Trump and his allies attacked election workers for just doing their jobs, all the Way up to the Oval Office, where Donald Trump embraced the legal advice of insurrectionists that a federal judge has already said was a coup in search of a legal theory. Our democracy withstood the attack on January 6th. If there is no accountability for January 6th, for every part of this scheme, I fear that we will not overcome the ongoing threat to our democracy. There must be stiff consequences for those responsible.22
And during the ninth meeting, Vice Chair Cheney stated:
A key lesson of this investigation is this. Our institutions only hold when men and women of good faith make them hold regardless of the political cost. … What happens when the president disregards the court’s rulings as illegitimate, when he disregards the rule of law? That, my fellow citizens, breaks our republic. … No president can defy the rule of law and act this way in a constitutional republic, period. … Those who planned to overturn our election and brought us to the point of violence must also be accountable. With every effort to excuse or justify the conduct of the former president, we chip away at the foundation of our republic. Indefensible conduct is defended. Inexcusable conduct is excused. Without accountability, it all becomes normal and it will recur.23
Discussion and recommendations
As addressed above, the January 6th Committee recommended a wide range of actions to hold Trump and his allies who participated in this plot accountable for the unprecedented conspiracy to overturn the valid 2020 presidential election. This section discusses the committee’s analysis, adds timely facts, and recommends a broad array of accountability measures that are largely consistent with the committee’s report.
1. Donald Trump
The January 6th Committee’s investigation and report make a central point abundantly clear: Donald Trump, the twice-impeached and one-term 45th president, is principally responsible for the multipart conspiracy to overturn the 2020 election and the related January 6 attack on the Capitol.24 Trump was personally and substantially involved in every major facet of the plot. The committee’s report details the premeditation of Trump and his allies that seeded the “big lie” well before Election Day and drove the decision to falsely claim victory on election night and unlawfully call for vote-counting to stop.25
Parallel to this delegitimization strategy, Trump and his allies attempted to pressure officials in key battleground states in which he lost the popular vote to change the results in his favor.26 This deeply anti-democratic plan included the use of debunked theories, lies, threats, and pure partisan politics.27 The efforts to overturn valid election results ensued in Michigan, Arizona, Pennsylvania, Wisconsin, and Georgia.28 For example, in a now-infamous January 2, 2021, phone call with Georgia Secretary of State Brad Raffensperger, Trump brazenly demanded, “I just want to find 11,780 votes, which is one more than we have.”29 It may well be impossible to document every pressure point that Trump and his allies in this plot sought to exploit; the committee notes at least 200 apparent acts of public or private pressure in which he and his allies directly engaged.30
When attempts to directly pressure election officials largely failed, Trump sought to corrupt the electoral college process itself, pressuring Vice President Pence to reject several states’ valid slates of electors.31 As detailed below, Trump rejected the advice of senior campaign attorneys and officials in his own administration, opting instead to work with a subset of extremist lawyers to carry out this part of the fake elector scheme.32 As Federal District Court Judge David Carter noted in a June 7, 2022, opinion: “The illegality of the plan was obvious. … Based on the evidence, the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021.”33 Trump’s intense pressure campaign against Pence included publicly berating him in speeches and on social media and issuing knowingly false statements in a “blatant attempt to mischaracterize” the vice president’s constitutional powers, endangering Pence’s life.34 Trump also continued to privately pressure Pence to adopt John Eastman’s debunked and severely flawed legal theory.35
If Trump is not made to face full accountability for this plot, there is a danger that he will not be deterred from continuing to act in unconstitutional and illegal manners and could be emboldened to go even further to improperly exercise his political will.
The January 6th Committee’s report also explains the intense campaign that Trump waged against the Department of Justice and the FBI in an effort to have them declare the existence of widespread voter fraud where none existed. Although officials repeatedly told Trump that the agencies had not found evidence of widespread fraud, he continued to demand that they declare the 2020 election illegal and corrupt and leave the rest up to him and members of Congress.36 Even when Attorney General William Barr rejected Trump’s fantastical election theories and lies, and later resigned, Trump continued to try to bend federal law enforcement leaders to his will. He also threatened to remove senior Department of Justice officials to elevate allies of his who would sell his election lie.37
And as a backstop in case the earlier stages of his plan did not succeed, Trump summoned a mob of his supporters to Washington on January 6, 2021—replete with armed extremists, paramilitary groups, and conspiracy theorists.38 He stoked that mob in his speech at the Ellipse, knowing that participants were angry and some were armed, and sent it straight to the Capitol with orders to “fight like hell.”39 Trump then sat back and watched the attack on television in the White House for hours before reluctantly telling his followers to go home.40
As leader of his loyal supporters, Trump could have called off the violent mob attack at the Capitol with a wave of his hand—and as the commander in chief, he had the power to mobilize the government’s resources to suppress the attack. Trump’s actions were not only unprecedented for a president; they were deeply un-American.
No president should be allowed to escape accountability for trying to violently overturn a valid election and denying the will of the people.
Trump is not above the law and must face meaningful legal accountability. He has faced very little so far and has taken staggeringly little responsibility for his actions; both a second impeachment and a term ending in disgrace have not chastened him. The bipartisan condemnation that came in the wake of the insurrection has faded from many corners—including much of the mainstream media and certainly from many lawmakers in Trump’s own party. Despite clear warning signs, social media giants Meta (Facebook’s parent company), Twitter, and YouTube—which all suspended Trump after the insurrection—recently decided to reinstate the accounts of the former president,41 who remains a vector for election-related misinformation and disinformation that heightens political extremism and violence. Trump is again seeking the presidential nomination of the Republican Party and currently leads in many national polls among Republican voters.42
Meanwhile, in continued service to the “big lie,” Trump has stated that circumstances surrounding his loss “[allow] for the termination of all rules, regulations, and articles, even those found in the Constitution” and has announced his intent to leverage the powers of the presidency for political reprisals.43 Trump also called on Congress to defund the Department of Justice and the FBI—agencies that are investigating his insurrection plot.44 And in March 2023, Trump, who has been indicted for 34 felonies by a Manhattan, New York, grand jury in relation to hush money paid to an adult-film actress just days before the 2016 election, again used violent rhetoric, writing that charges in that case could lead to “potential death & destruction.”45
If Trump is not made to face full accountability for this plot, there is a danger that he will not be deterred from continuing to act in unconstitutional and illegal manners and could be emboldened to go even further to improperly exercise his political will. Although indicting Trump has the potential to boost his popularity among his supporters and lead to potential political violence, failure to prosecute Trump could send a signal that former presidents are above the law and can act with impunity when attempting a political coup.
A range of options exist to hold Trump fully accountable for this scheme:
- Based on its investigation, the January 6th Committee made several criminal referrals of Trump to the Department of Justice. The referrals indicate that the committee believes there is sufficient evidence in the existing record of violations of 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).46 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), and some of Trump’s attorneys may have obstructed justice (18 U.S.C. §§ 1505 and 1512).47 As noted earlier, the attorney general has appointed special counsel Jack Smith to lead the investigation into the former president’s conduct. Smith should act swiftly to complete his investigation and, if appropriate, bring charges against Trump.
- Prosecutors in Fulton County, Georgia, are actively conducting a criminal investigation into whether Trump’s attempts to overturn the 2020 election in that state violated the law. The potential charges against Trump and his allies might include solicitation and conspiracy to commit election fraud, intentional interference with the performance of election duties, tampering with an electors list, false statements, and racketeering.48 The special grand jury investigating the matter concluded its work in early 2023.49 Although its report has not yet been released in full, a redacted version shows that the grand jury believes that some witnesses may have committed perjury, and it “unanimously agreed that Georgia’s 2020 presidential vote had not been marred by ‘widespread fraud,’ contrary to what Trump and many of his allies have claimed.”50 Prosecutors in Georgia should act expeditiously in moving to the next phase of this investigation, including, and if appropriate, possible prosecution of Trump.
- As the committee discussed, Trump’s wide-ranging conspiracy that culminated in the January 6 insurrection likely violated Section 3 of the Constitution’s 14th Amendment.51 This provision disqualifies individuals who previously took oaths to support the U.S. Constitution but who “engaged in an insurrection,” or gave “aid or comfort to the enemies” of the government, from holding federal or state office.52 Under that provision alone, Trump should be disqualified from holding office again.53 Some members of Congress are discussing potential legislation that would create the legal mechanisms to help implement the disqualification provision against Trump, although chances of such legislation passing the House are not high.54 A later section of this report explores a recent example of a state court applying Section 3 of the 14th Amendment to disqualify a county official from holding public office.
- In recent months, despite dangerous political rhetoric from Trump, every major social media company has allowed him to return to their platforms. As a leaked committee staff memo discussing social media’s role in the plot to overturn the election noted, “President Trump could soon return to social media—but the risk of violence has not abated.”55 Having made the choice to allow Trump back on their platforms, major social media companies should bear responsibility for any violence he encourages online. They should pay close attention and seek swift and decisive action if his posts incite or encourage violence or otherwise violate their terms of service.
2. Trump’s attorneys and top advisers
Trump and his election fraud claims were considered in court, multiple times, and “in no instance did a court find that the charges of fraud were real.”56 Sixty-two separate lawsuits were filed between Election Day and January 6 that sought to overturn the valid election results; Trump’s arguments lost in all but one case, which did not support the fraud claims, and the cases did not change the results of any state’s election.57 Judges in these cases across multiple states described Trump’s legal arguments as not made in good faith and “unsupported by evidence,” with one saying that they were a “fundamental and obvious misreading of the Constitution.”58 Roundly defeated in federal and state courts, Trump nonetheless pressed on with an extremist team of lawyers that assisted in the next layer of the conspiracy.
Trump engaged political aides, advisers, lawyers, and others inside his campaign, the White House, and the Department of Justice in his scheme. Some—such as Attorney General Barr, acting Attorney General Jeffrey Rosen, and acting Deputy Attorney General Richard Donoghue—pushed back forcefully on the conspiracy and the very idea that the election was fraudulent.59 A schism soon developed between “Team Normal,” which attempted to advise Trump that his actions were misguided, and “Rudy’s team,” led by Giuliani, who relied on unsupported accusations and “outrageous lies” to support the conspiracy.60 The committee’s report details how this latter team took center stage in the run-up to January 6. The team included a host of conspiracy theorists and Trump acolytes such as Steve Bannon, Roger Stone, and Michael Flynn, who were in close contact with violent paramilitary groups, including the Proud Boys and Oath Keepers, as well as attorneys such as Rudy Giuliani, Sidney Powell, Jenna Ellis, John Eastman, and Kenneth Chesebro, among others.
The lawyers most central to the plot [to overturn the 2020 election] should be considered for disbarment and disallowed from practicing or teaching the law.
When it became clear to Trump campaign lawyers that Giuliani was leading the “new legal team,” many quit. Matthew Morgan, Trump’s campaign general counsel, told the January 6th Committee that many law firms were “not comfortable making the arguments that Rudy Giuliani was making publicly.”61 Even as litigation ensued, Trump and these aides swept into states to pressure state leaders to choose new electors and change the outcome of the election in Trump’s favor.62 For instance, Giuliani, sometimes with assistance from Ellis and Eastman, pressed that case in Georgia, Pennsylvania, Michigan, Arizona, and other states even though they were repeatedly told that “such a move by the legislature[s] would be illegal.”63
Giuliani, Powell, and Ellis also led attacks on Dominion Voting Systems that would become a core part of propping up the false claims of fraud. The trio said the machines were hacked and even that they used vote-flipping software “created in Venezuela at the direction of Hugo Chavez”; their chief investigator would later acknowledge they had no proof.64 Giuliani and Powell also engaged in efforts to gain access to voting machines in multiple states with the assistance of allied elections officials—efforts that also turned up nothing.65
Dominion Voting Systems
It should be noted that Trump-aligned media outlets such as Fox News stoked the Dominion narrative and the general voter fraud claims while frequently inviting Giuliani and Powell to spread disinformation on the network.66 Dominion subsequently filed a $1.6 billion defamation lawsuit against Fox News, which the parties settled on April 18, 2023, with Fox News stating that it “acknowledge[d] the Court’s rulings finding certain claims about Dominion to be false.”67 During the course of discovery in that litigation, it was revealed that chairman Rupert Murdoch and marquee Fox News broadcasters, including Tucker Carlson, Sean Hannity, and Laura Ingraham, expressed private misgivings about this narrative—though they still gave Trump’s team ample airtime to spread dangerous falsehoods that have weakened faith in the election system.68
This report previously mentioned Eastman’s role in pushing unconstitutional and illegal theories.69 But it is also important to note that Chesebro shares authorship of the fake elector scheme with Eastman, having played a central role in working with Giuliani and a network of operatives and state elected officials who were organizing fake electors in battleground states.70 Chesebro went so far as to draft and distribute documents for the fake electors to use, as well as step-by-step logistical guidance on how to carry out the fraudulent process and submit documents to Congress.71 The committee also found that in order for that plan to work, Eastman and Ellis aided Trump in his pressure campaign against Vice President Pence.72
Both Giuliani and Eastman spoke at the January 6 Ellipse rally, where they repeated their lies as Trump encouraged an angry mob toward the Capitol.73 The committee also learned that Giuliani called numerous members of Congress during the attack, after speaking with Trump, to press them to delay the joint session from reconvening and to object to counting the valid votes of numerous states.74 In the days following the attack, Eastman asked Giuliani for his name to be included on Trump’s “pardon list.”75
The January 6th Committee concluded that “sufficient evidence exists for a criminal referral of John Eastman and certain other Trump associates under 18 U.S.C. §1512(c)” for obstructing an official proceeding.76 It also found that Trump’s attorneys may have violated the obstruction of justice statute at 18 U.S.C. § 1505.77 Moreover, the committee concluded that courts and “bar disciplinary bodies responsible for overseeing the legal profession” should evaluate the conduct of the attorneys described in its report.78
The actions detailed in the committee’s report are affronts to the legal profession, and the people who carried them out must be held fully accountable.
Since January 6, Trump’s top attorneys and advisers have escaped full accountability for their participation in the conspiracy, although some notable disciplinary actions have occurred. Giuliani’s license to practice law was temporarily suspended in New York state,79 and he awaits the outcome of a similar proceeding in Washington, D.C.80 Ellis was recently censured by the Colorado Supreme Court, a decidedly light punishment given that she was allowed to keep her license in good standing once she agreed that she made 10 specific misrepresentations.81 The California state bar filed disciplinary charges against Eastman, which could lead to sanction or disbarment.82 Powell has thus far avoided such charges, with a Texas judge recently dismissing a petition brought against her by the State Bar of Texas Commission for Lawyer Discipline.83 By and large, these top Trump attorneys have been able to continue in their professions, and all of them continue to assert that no crimes or ethics violations were committed in association with their 2020 election work for Trump.
Yet the actions detailed in the committee’s report are affronts to the legal profession, and the people who carried them out must be held fully accountable for their roles in the plot. The following options exist to accomplish this:
- The previous section of this report discussed the January 6th Committee’s criminal referrals of Trump. In some of the referrals, the committee also explicitly names Giuliani, Eastman, and Chesebro, among others, for their activities in the wide-ranging conspiracy.84 The Department of Justice and special counsel Jack Smith have a responsibility to thoroughly investigate the named individuals and any other attorneys and close advisers associated with Trump’s attempted coup and bring appropriate criminal charges. One promising sign: In early April 2023, the D.C. Circuit Court of Appeals sided with the Department of Justice and ordered Trump’s White House chief of staff Mark Meadows and other aides to testify in the ongoing Department of Justice investigation; and in mid-April, a federal district court ordered Pence to testify, which Trump has appealed.85
- As the committee aptly states in its recommendations, “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.”86 Courts and bar disciplinary bodies that oversee the legal profession in any jurisdiction have the responsibility to thoroughly review the findings in the committee’s report. The list of attorneys who had a hand in Trump’s illegal and unconstitutional scheme, however, is likely longer than even that contained in the report. Any attorney who was involved in the cases that made their way through the legal system on the basis of known false allegations or outright lies should be investigated for potential sanction based on any violations of applicable ethics rules. Based on the gravity of the activities that the committee uncovered, the lawyers most central to the plot—Giuliani, Powell, Ellis, Eastman, and Chesebro—should be considered for disbarment and disallowed from practicing or teaching the law.
3. Members of Congress
As the January 6th Committee discussed in compelling fashion, many members of Congress played crucial roles in Trump’s vast conspiracy to subvert the 2020 presidential election or to thwart the committee’s subsequent investigation. The committee specifically concluded that four congressmen should be held accountable for their anti-constitutional behavior: Reps. Kevin McCarthy (R-CA), Jim Jordan (R-OH), Scott Perry (R-PA), and Andy Biggs (R-AZ).87 The committee detailed how these members either directly participated in the plot to overturn the valid election or took active steps to undermine the committee’s lawful fact-finding mission. After being asked to voluntarily give relevant testimony to the committee, all four congressmen flagrantly defied lawful committee subpoenas; for this, the committee referred these congressmen to the House Ethics Committee for discipline and accountability.88
In doing so, the January 6th Committee wrote that the congressmen’s willful noncompliance violated multiple House rules and standards of conduct, for which they must be disciplined. The committee determined: “Willful non-compliance with compulsory congressional committee subpoenas by House Members violates the spirit and letter of House rule XXIII, clause 1, which requires House Members to conduct themselves ‘at all times in a manner that shall reflect creditably on the House.’”89 The committee concluded that the congressmen’s refusal to comply with its subpoenas was a violation of this rule that discredited Congress 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.”90
Despite the January 6th Committee’s disciplinary recommendation, no members of Congress have yet been held accountable.
The January 6th Committee also stated that it believes that those four members, along with other House members who attended the December 21, 2020, planning meeting with Trump at the White House, should be questioned in a public forum about their advance knowledge of and role in Trump’s plan to prevent the peaceful transition of power.91 The other members who allegedly attended the White House meeting include Reps. Brian Babin (R-TX), Mo Brooks (R-AL), Matt Gaetz (R-FL), Louie Gohmert (R-TX), Paul Gosar (R-AZ), Marjorie Taylor Greene (R-GA), Andy Harris (R-MD), and Jody Hice (R-GA).92 Several House members who are believed to have attended the White House meeting allegedly asked for pardons from Trump, with Rep. Brooks allegedly suggesting a blanket pardon for every member of Congress who voted to reject the electoral college vote submissions of Arizona and Pennsylvania.93 Many of these lawmakers assert that they did not ask for pardons for themselves.94
Despite the January 6th Committee’s disciplinary recommendation, no members of Congress have yet been held accountable. In fact, the opposite has occurred. The House members who the committee implicated have only become more empowered, especially in a Republican caucus where more than two-thirds of members are “election deniers,” individuals who embraced Trump’s “big lie” and denied the valid results of the 2020 presidential election.95 In January 2023, Rep. McCarthy was elected the new speaker of the House after 18 rounds of votes during which the most extreme election deniers and insurrection sympathizers in the Republican caucus extracted extensive capitulations from him in exchange for their support, markedly increasing their influence within the House.
After being elected speaker, McCarthy elevated Rep. Jordan to chair of the House Judiciary Committee, as well as a newly formed “Select Subcommittee on the Weaponization of the Federal Government.” Jordan immediately began investigating the Department of Justice, FBI, Department of Homeland Security, and other law enforcement entities—and has issued subpoenas as part of some of these investigations, an ironic turn of events given Jordan’s refusal to honor the January 6th Committee subpoenas compelling his own testimony.96 McCarthy then approved the subcommittee’s members, including some of the most extreme voices in the Republican caucus, who regularly traffic in election denialism and dangerous conspiracy theories; who refuse to repudiate Trump’s calls for violence, his support of white nationalists and antisemites, or his thwarting of the Constitution; and who have supported the January 6 rioters.97 Rep. Barry Loudermilk (R-GA), a key McCarthy ally who voted to overturn the valid presidential election results, is now leading a probe into the work of the January 6th Committee, which he claims failed to conduct an impartial investigation.98
McCarthy, who voted to overturn the election even after admitting that Trump was partially responsible for the insurrection,99 stacked other key committees with chairpersons and members who either spread the “big lie,” voted against certifying the election, or aided Trump’s election denialism in countless other ways.100 It is Orwellian that Congress members such as Jordan—who helped orchestrate and cover up Trump’s attempted coup—and Loudermilk are now weaponizing investigations into the investigators. At the same time, McCarthy gave more than 40,000 hours of sensitive, internal Capitol footage from January 6 exclusively to Fox News election denier Tucker Carlson, who then attempted to rewrite history, predictably asserting that the footage “demolishes” the claim that there was an insurrection on January 6.101 And Rep. Marjorie Taylor Greene, an election denier who recently called for the United States to split into two nations, traveled to a D.C. jail to visit defendants charged with or convicted of violence against Capitol Police officers; she and several Republican Congress members reportedly shook the insurrectionists’ hands and gave them high fives.102
To reward these lawmakers with leadership positions or assume that they will conduct impartial oversight makes a mockery of democracy.
The failure of the House—and the Senate, where senators such as Lindsey Graham (R-SC) allegedly tried to get Georgia officials to reverse Biden’s valid election victory, a claim he denies—to hold its members accountable for subverting the committee’s lawful work is lamentable. But to reward these lawmakers with leadership positions or assume that they will conduct impartial oversight makes a mockery of democracy. Their elevation into positions of power has the potential to mainstream their dangerous political extremism and give credence to Trump’s attempted coup, while signaling that members of Congress are above the law and can encourage mob rule in the future.
Members of Congress who aided Trump’s harmful conspiracy to overturn the election results must face accountability. Although the chances of short-term action are low given that Republicans currently control the House, a range of options do exist:
- At a minimum, the House Ethics Committee—if it believes in its mission—should hold accountable Reps. McCarthy, Jordan, Perry, and Biggs for defying lawful subpoenas and breaching multiple House rules. Ethics-related consequences ideally would result in a House vote to expel these members. Short of that, these members should be stripped of any leadership and committee positions.
- Per the January 6th Committee’s recommendation, other House members should be questioned in open settings about their roles in the wide-ranging Trump conspiracy and cover-up.103 Per the discussion above, this should include Reps. Babin, Brooks, Gaetz, Gohmert, Gosar, Greene, Harris, and Hice. The Ethics Committee could conduct such questioning, although jurisdiction could also lie with the Homeland Security, Judiciary, or Administration committees. Those House members who are found to have aided or abetted the insurrection could be stripped of their committee assignments or have their office budgets reduced. At a minimum, those members should face formal censure by the full House.
- Federal, state, and local prosecutors should investigate and prosecute members of Congress who may have broken applicable laws during Trump’s conspiracy and its aftermath. The Department of Justice is investigating Rep. Perry for his role,104 and the Fulton County district attorney compelled multiple members of Congress—including Sen. Graham and Rep. Hice—to testify in grand jury proceedings.105
- Members of Congress who are licensed attorneys and participated in Trump’s conspiracy to overturn the election should be investigated and held accountable by their state bar associations, consistent with this report’s discussion above. This includes potential disbarment.
- In the Senate, relevant committees could conduct investigations into potential misconduct by senators and others who aided the Trump conspiracy and led efforts to invalidate valid electoral slates.
- In both the House and Senate, lawmakers found to have violated the 14th Amendment’s disqualification clause, as discussed above, should be expelled from Congress. Both the Senate and House have histories of refusing to seat such disqualified individuals.106
4. Individual rioters and paramilitary groups
As the January 6th Committee’s report makes clear, the riot at the Capitol depended on loyal foot soldiers, including extremists, white supremacists, and paramilitary organizations, who violently stormed the seat of Congress to disrupt the counting of electoral votes.107 Many of them testified before the committee that Trump summoned them by tweet to Washington.108 He propagated lies that the election had been stolen from him and from his supporters, creating a sense of urgency and a command to “take back” the country.109 Trump not only knew that many of his supporters were violently angry on January 6; he knew that many of them were heavily armed with weapons and eager to march to the Capitol to, in their minds, save their nation. Paramilitary groups such as the Proud Boys and Oath Keepers organized themselves at the highest levels, throughout their ranks, and across groups “to use any means necessary, up to and including the use of force, to stop the lawful transfer of presidential power.”110
For many of these insurrectionists, January 6 was the dramatic climax of several years of agitating against what they believed was government overreach.111 The Capitol grounds became the arena where they could exercise their grievances in plain view. With command structures in place, the rioters breached the Capitol after engaging in violent skirmishes with its brave police forces.112 Once inside the building, they ransacked the historic seat of government and hunted for members of Congress and Vice President Pence, who, moments before, had been whisked to secret hiding places.113 Only after three hours—during which the mob came very close to succeeding—and only after being beseeched by members of Congress, close aides, family members, and others did Trump finally ask his followers to stand down, telling them, “We love you.”114 Within hours, the joint session of Congress reconvened, and despite the shocking violence that had just occurred and the ransacking of parts of the Capitol, members of Congress finished the process of certifying the lawful election.115
The select committee’s transcripts reveal an emboldened vigilante wing of the far-right that is held in thrall to bigotry and paranoia, which poses a threat to the rule of law that runs deeper than an old man’s dangerous vanity.
Jacob Glick, former staff member of the January 6th Committee
The January 6th Committee’s painstaking investigation involved interviews with scores of rioters, including key figures from the Oath Keepers and Proud Boys.116 The committee lauded the Department of Justice’s “tremendous work” in prosecuting “hundreds of individuals who planned and participated” in the Capitol riot, while also emphasizing the importance of charging individuals who “engaged in the broader plan to overturn the election through the means discussed in this Report.”117 The committee wrote, “Additional steps may also be appropriate to ensure criminal or civil accountability for anyone engaging in misconduct described in this Report.”118
As of the date of the committee’s report—December 22, 2022—the Department of Justice had “charged more than 900 individuals, and nearly 500 have already been convicted or pleaded guilty.”119 The committee also recommended that federal agencies with intelligence and security missions implement “whole-of-government strategies to combat the threat of violent activity posed by all extremist groups, including white nationalist groups and violent anti-government groups while respecting the civil rights and First Amendment civil liberties of all citizens,” as well as improved “intelligence sharing protocols.”120
Since the committee’s report, the number of people charged has swelled to more than 1,000.121 Some high-profile convictions have been obtained. On November 29, 2022, a federal jury determined that the founder of the Oath Keepers, Stewart Rhodes, and its top deputy, Kelly Meggs, were guilty of seditious conspiracy.122 And other members of the Oath Keepers pleaded guilty to seditious conspiracy.123 Meanwhile, the Department of Justice is currently prosecuting Proud Boys leader Enrique Tarrio and four of his lieutenants for seditious conspiracy.124
Despite these important prosecutions, the threats from violent white supremacist groups remain a potent force that gained significant momentum during the Trump presidency. As one former member of the January 6th Committee staff wrote:
The Trump era was in many ways defined by a staggering rise in far-right extremism … The select committee’s transcripts reveal an emboldened vigilante wing of the far-right that is held in thrall to bigotry and paranoia, which poses a threat to the rule of law that runs deeper than an old man’s dangerous vanity. … Its targets will continue to shift, as they did throughout 2020, but its end goal remains: normalizing political violence to undermine modern society.125
For example, the Proud Boys have remained active, protesting at school board meetings and local government forums convened in support of COVID-19 mask-wearing requirements and disrupting LGBTQ events such as storytelling sessions by drag performers. Some of these actions have led to ongoing hate crime investigations.126
If insurrectionists and paramilitary organizations are not held accountable, America runs the risk of mainstreaming their views and further subverting democracy.
If insurrectionists and paramilitary organizations are not held accountable, America runs the risk of mainstreaming their views and further subverting democracy. Aside from engaging in political violence, these individuals and groups could continue to ingratiate themselves with federal, state, and local lawmakers; sign up as poll watchers and disrupt valid election processes; or win election to local offices. Recognizing these immense threats, the Biden administration crafted and released a multipronged plan to counter domestic terrorism, which implicitly undergirds some of this report’s conclusions.127
Accountability for insurrectionists and related organizations should include the following:
- The Department of Justice should continue to use all available laws and tools to aggressively track down, investigate, prosecute, and hold accountable the people who helped plan and carry out the deadly riot on January 6. As one noted expert, Mary McCord, a former top U.S. Department of Justice official, testified to Congress, this will require not only criminal enforcement mechanisms, but also “a civil enforcement mechanism that would allow the U.S. Department of Justice to seek injunctive relief and civil forfeiture against armed paramilitary actors and their organizations.”128
- According to experts, laws exist in all 50 states that prohibit unauthorized paramilitary activities, which are not protected by the Second Amendment to the Constitution. Wherever possible, state law enforcement authorities and other stakeholders should aggressively use enforcement actions and litigation to prevent unauthorized paramilitary activities and hold the groups that violate these laws accountable.129 For example, after the city of Charlottesville, Virginia, brought a lawsuit against several white supremacist militia groups in 2018, those groups entered consent decrees permanently prohibiting them from returning there to engage in coordinated armed activity during rallies and protests.130 A similar injunction was issued in 2022 against a violent paramilitary organization in New Mexico.131 Although these lawsuits represent positive steps toward accountability, it appears that Idaho is on the verge of repealing its state anti-militia law, a giant step in the wrong direction.132
- States and municipalities should consider suing paramilitary organizations for the costs associated with their violent activities. In a notable positive development, Washington, D.C., has brought 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, with the D.C. attorney general saying that he aims to use “the law to the maximum extent possible to impose financial liability” on these groups and their members.133
- Where appropriate, the Department of Justice should use RICO laws to indict and, if found guilty, convict the top leaders of paramilitary groups, in ways similar to how the department has held the Mafia and other violent organizations, including MS-13, responsible for their crimes.134 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. This is a predicate offense for RICO. According to several news reports, the department at one point was considering using RICO against insurrection participants.135
- Many organizations alleged to be violent hate groups enjoy tax-exempt charitable status from the IRS or state agencies.136 This includes the Oath Keepers, which is registered in Nevada as a nonprofit corporation, according to founder Stewart Rhodes and state records.137 Multiple Oath Keepers chapters around the nation operate with either “501(c)(3)” or “501(c)(4)” tax-exempt status from the IRS.138 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. Consistent with the First Amendment, revocations must not be based on the political views espoused by tax-exempt organizations.139
- Federal and state authorities should, where appropriate, use the full range of potential penalties against paramilitary and hate groups, if they are convicted of crimes, where they are organized as corporations. For example, the Proud Boys, at one point, was registered as a limited liability company under the laws of Texas, according to committee testimony from leader Enrique Tarrio.140 Corporations convicted of crimes can be fined, placed on probation, or ordered to pay restitution to victims. They can also have their property confiscated, as well as be barred from engaging in various types of commercial activity, forced to accept an oversight monitor, and made to endure permanent injunctions to reduce ongoing threats. They may even face the corporate “death penalty”—being forced to dissolve—if the public good calls for it.141
5. State and local officials
As discussed earlier, in the sprawling conspiracy to overrule the will of the people, Trump and some of his top allies enlisted the assistance of state and local officials in battleground states across the country. Biden validly won the presidential election in these states, including Pennsylvania, Michigan, Wisconsin, Arizona, Georgia, and others. But Trump embarked on a plan to stop states from certifying their valid election results and to create alternate slates of electors favorable to him. Although some state lawmakers refused to participate in plans to overturn the election results, others eagerly cooperated.142 One prominent example was Doug Mastriano (R-PA), a state senator who met and spoke directly with Trump several times; helped design the plan for Pennsylvania to reject the valid election results; attended the Trump rally on January 6, where he chartered buses for other attendees; and refused to fully cooperate with the committee’s investigation.143
The January 6th Committee’s report did not make specific recommendations about accountability for state and local officials who were involved with Trump’s conspiracy to remain in power. But as noted above, the committee recommended that the Department of Justice investigate and prosecute anyone involved in Trump’s plan to subvert a free and fair election.
In the two-plus years since the January 6 insurrection, right-wing extremists continue to be elected to state and local public offices, affording them the license to mainstream their extremist viewpoints.144 This poses an ongoing threat to democracy, with many right-wing lawmakers across the nation proposing scores of new laws that would help suppress voters and subvert valid election results.145 Researchers found 875 state legislators who served in the 2021-2022 legislative period—representing all 50 states and equaling almost 12 percent of all state legislators—who joined at least one far-right group on Facebook.146 And at least 48 state and local officials, including 10 current lawmakers, were discovered to be Oath Keepers members.147 Moreover, several secretaries of state, who oversee their states’ election processes, are proponents of the “big lie,” including Florida’s secretary of state, who collaborated with Trump’s election attorneys and refused to admit Biden won the 2020 election.148 In Arizona, then-Attorney General Mark Brnovich reportedly concealed records debunking election fraud claims.149
In the two-plus years since the January 6 insurrection, right-wing extremists continue to be elected to state and local public offices, affording them the license to mainstream their extremist viewpoints.
Lack of accountability can have dangerous repercussions and potentially embolden future attempts at election subversion. Far from feeling shameful about his behavior supporting the January 6 insurrection, Pennsylvania state Sen. Mastriano did not retreat from his support of the “big lie” and instead went on to run for his state’s highest office in 2022—governor.150
Meanwhile, in New Mexico, a former state legislative candidate who was an unabashed election denier and lost his race by more than 50 points “was charged with orchestrating shooting attacks at the homes of four Albuquerque Democrats who refused to entertain his demands that his defeat be reversed.”151 Right-wing, election-denying county supervisors in Cochise County, Arizona, refused to certify the county’s valid 2022 election results until a court ordered it.152
Occasionally, however, state or local officials have faced accountability for their role in Trump’s scheme to overturn the election. In 2022, a state judge ordered that Couy Griffin be removed from his seat as commissioner in Otero County, New Mexico, and constitutionally disqualified under the 14th Amendment from holding any future office because of his active role in the January 6 riot.153 Griffin, who founded the group Cowboys for Trump, had already been convicted in federal court for entering the Capitol grounds on January 6, for which he was sentenced to 14 days in jail. Relying on election conspiracy theories, Griffin also defied a court order by refusing to certify valid primary election results in 2022.154 In February 2023, the New Mexico Supreme Court upheld a lower court ruling that Griffin be permanently banned from holding public office due to his participation in the insurrection; Griffin vowed to appeal this decision to the U.S. Supreme Court.155 Notably, the New Mexico Supreme Court is the highest court in the nation so far to find that the January 6 attack was an “insurrection” under the 14th Amendment and to remove an official from office for participating in it.
If this country’s systems of justice fail to boldly defend its principles and reject mob rule, the survival of its nearly 250-year-old democratic experiment is in peril.
In two other rare examples of accountability, in March 2023, North Carolina’s state board of elections removed two county election officials who had invalidly refused to certify their county’s 2022 election results;156 and in April 2023, the Arizona House of Representatives expelled a lawmaker for bringing disrepute on the chamber by inviting a known election conspiracy theorist to publicly testify and spread false claims.157
Potential accountability measures for state and local officials include the following:
- Federal, state, and local prosecutors should investigate and prosecute state and local officials who participated in Trump’s conspiracy. The January 6th Committee’s report provides valuable evidence, especially to state and local law enforcement agencies, which may have fewer investigatory resources than the U.S. Department of Justice. For example, after the report’s release, Michigan Attorney General Dana Nessel reopened a state investigation into individuals who signed an electors certificate falsely claiming that Trump had won Michigan’s 2020 election; Nessel cited her concerns with the slow pace of the ongoing federal investigation.158 Additionally, the Department of Justice has subpoenaed several Arizona Republican state legislators in the ongoing probe of Trump’s conspiracy to overturn that state’s valid election results.159
- State courts should follow the lead of New Mexico, where courts ruled that a county commissioner was ineligible under Section 3 of the 14th Amendment to hold any sort of state public office or employment.160 Where appropriate, “quo warranto” laws in all 50 states can help parties bring lawsuits alleging violation of the 14th Amendment.161 Additionally, state legislatures should consider passing laws to effectuate bans under the 14th Amendment that would make it easier for authorities to hold insurrectionists accountable for their misdeeds, although such laws arguably are unnecessary.162 New York, Connecticut, and Virginia, for their part, have proposed legislation that would bar people convicted of participating in an insurrection from holding public office or a position of public trust.163
- State legislatures should use the full range of available penalties to hold lawmakers accountable for their roles in Trump’s conspiracy. These penalties generally can range from censure to removal from office.
- As noted above, bar associations should investigate and, if appropriate, hold accountable state and local officials who are licensed attorneys and participated in the Trump conspiracy. Where necessary, penalties should include stripping these attorneys of their licenses to practice law.
The January 6th Committee’s investigation and report provide a compelling road map to hold Trump and his allies in this plot accountable for orchestrating one of the darkest chapters in American history. No president should be allowed to escape accountability for trying to violently overturn a valid election and denying the will of the people. The stunning lack of accountability for Trump and his allies in this scheme exacerbates the ongoing threats to democracy, adds fuel to the fire of political extremism and violence, and communicates that some people are above the rule of law. If this country’s systems of justice fail to boldly defend its principles and reject mob rule, the survival of its nearly 250-year-old democratic experiment is in peril.