Prosecute Trump? What Motivated the Mob? What Will Voters Say in November?
Former White House aide Cassidy Hutchinson’s testimony to the January 6 congressional committee revealed Donald Trump’s awareness that the mob he sent to the Capitol was armed. Photo by AP/Jacquelyn Martin
Prosecute Trump? What Motivated the Mob? What Will Voters Say in November?
BU experts assess what we’ve learned so far from the January 6 congressional committee hearings
The congressional committee investigating the January 6, 2021, insurrection has rested its public hearings, for now. And despite what was already known, day after day the witness testimony dropped one bombshell revelation after another:
Far from spontaneous, the insurrection was planned in advance by President Donald Trump and his inner circle; Trump wanted armed supporters admitted to his January 6 rally, where he egged them on to the Capitol; Trump ignored for hours pleas to stop the insurrection, even ordering (vainly) his Secret Service driver to take him to the chaos; a relentless chorus of aides, notably excepting Trump lawyers Rudy Giuliani and John Eastman, dismissed the president’s stolen-election claims; and Giuliani and Eastman allegedly sought pardons for their roles in trying to overturn the election result, as did chief of staff Mark Meadows and several Republicans in Congress.
Attorney General Merrick Garland, spearheading the Justice Department’s separate investigation, ultimately must decide two questions: did Trump commit crimes, with sufficient evidence thereof for a jury to convict? And might it be in the national interest, for the sake of political stability, to pass on what would be an unprecedented prosecution of a former president? The American public meanwhile faces a third, and more imminent, question: how to weigh the revelations from the hearings when voting in November’s midterm elections?
BU Today asked three University faculty members for a postmortem—legal, political, and sociological—on the committee hearings thus far. (The hearings are expected to resume in September.)
These interviews have been edited for space and clarity.
THE LAW
BU Today: If you were the US attorney general, would you prosecute Trump, based on the evidence?
Jack Beermann, professor of law and Harry Elwood Warren Scholar, School of Law: Prosecuting a former president for crimes related to his political activities is a delicate matter, fraught with danger to our political and legal system, and should be done, in my opinion, only in the most clear and extreme cases. The last thing we need in our divided country is a new tradition of prosecuting the other party’s leaders after an election. Just as I was appalled at the “Lock her up” chants about Hillary Clinton, I would find it disturbing if a prosecution of former president Trump was perceived, even in part, as political retribution.
If I were attorney general, I would be reluctant to bring a case unless the record included incontrovertible evidence of a well-defined crime. While the January 6 committee has done an admirable job of painting a picture of a president who encouraged and even facilitated the invasion of the Capitol Building and the disruption of the count of electoral votes, I have not heard evidence or legal argument that convinces me that the president committed a clearly defined crime, [sufficient] to convince the American people that politics was not playing a significant role in any prosecution. I might think differently if there was evidence that President Trump was actually involved in plans to violently invade the Capitol building and try to kill the vice president or members of Congress. If there was clear evidence of that, and the prosecution could be confined to that, I might be in favor of moving forward with a case.
That said, I think a thorough probing of the events is healthy for the system. By revealing the extent of the administration’s involvement in planning and inciting the violent effort to overturn the results of the election, the people can see the former president’s malevolent intent, just how close we were to the subversion of our electoral system, and [that] reforms can be adopted to strengthen our ability to prevent it from recurring. I also want to make it clear that Donald Trump’s conduct was reprehensible, not only on January 6, but in the entire period after the election. He caused great damage to our democracy by convincing his followers that the election results were a fraud and that the presidency was stolen. It may take decades to recover from this, much as it took years for our country to recover from Richard Nixon’s subversion of the process.
BU Today: His defenders say Trump honestly believed his false election claims, and that he wasn’t inciting violence by sending an armed crowd to the Capitol. Does the law allow him to be prosecuted nevertheless, under the standard that he should have known his claims were false and his mob dangerous?
In a matter like this, actual knowledge and intent to defraud is normally required for criminal responsibility. In terms of inciting violence, it seems to me that if he knew they were armed and he knew violence was likely, you have more than a “should have known” case, you have a “he knew” case; he would be responsible under normal incitement standards, subject to the First Amendment, which requires that there be a clear and present danger of incitement to serious and imminent lawless conduct before any person can be prosecuted for making a speech. That standard might well have been met by President Trump’s words and actions on, and leading up to, January 6. But again, I would be very reluctant to prosecute him for the reasons I’ve expressed. It might backfire and only aggravate the divisions in our country that led up to January 6. Regardless, President Trump’s reckless disregard for the truth and for the welfare of the country constituted a serious abuse of power, dereliction of duty, and breach of the public trust, worthy of impeachment and removal from office and disqualification from seeking office if nothing else.
BU Today: Some experts say that if the evidence suggests Trump’s closest aides conspired to break the law, it’s impossible to argue the president isn’t also prosecutable, having participated in their discussions. Would that be legally persuasive at a Trump trial?
If a person joins in a criminal conspiracy, they are normally responsible for all crimes committed in furtherance of the conspiracy by coconspirators, even when they did not directly participate in the particular crime. However, a person is not considered part of a conspiracy unless they agreed to at least some of the group’s criminal plans. If the president encouraged his closest aides to break the law during their discussions, he might be considered part of the conspiracy, and thus be responsible for the crimes they ultimately committed pursuant to the agreement. Simple participation in discussions is not enough, but agreement to their intended illegal conduct might be. Further, the discussions would certainly be valuable evidence of what the president knew and would provide context for other actions which, in totality, might be viewed as participation in a criminal conspiracy.
THE POLITICS
BU Today: Those who say Trump should be prosecuted predict that if he isn’t, the next authoritarian in government will feel empowered. Are you convinced by that argument?
Shawn Lynch, lecturer in social sciences, College of General Studies: Absolutely. Wrongdoing must be punished, or others will take the same path as Trump and his deluded followers. He must be prosecuted for an attempted coup—among all the other crimes he committed before and during his administration. If democracy is to survive, Trump must be prosecuted.
BU Today: What about the counterargument: prosecuting the ex-president is against the national interest, an unprecedented step that could take our bitterly divided politics to the breaking point, especially if he’s acquitted?
Prosecuting criminals is in the national interest, no matter what office they held. To suggest that former presidents cannot be prosecuted is ludicrous and nonsensical. No person is above the law in a constitutional republic. The corruption in our system, which is already considerable, will only grow worse if Trump and his coconspirators are not prosecuted.
I have no doubt, however, that his trial(s) will lead to violence on the part of his supporters and could lead us into a civil war. States could threaten secession because of a trial or [if] he loses the 2024 election. Nevertheless, he must be prosecuted for his crimes, along with his coconspirators, like [attorney Rudy] Giuliani, [former advisor Steve] Bannon, and the others.
That this country is about to tear itself apart over someone as loathsome as Donald Trump is akin to divine punishment for the American people.
BU Today: What proposed reforms are most important to bolstering our democracy against the attempted subversions revealed by the committee?
The committee will release a report with recommended reforms. We need wholesale reform of our corrupt system, so it is doubtful that even what they recommend will go far enough. Our Constitutional order failed the minute Trump was not removed from office for violations of the Emoluments Clause [prohibiting foreign money or gifts to presidents], or over Ukraine [whose president Trump pressured to investigate political opponent Joe Biden’s son], or for his coup. The United States needs major reform of our institutions, and although the committee will likely offer some great ideas, they won’t go far enough to stop the rot. This system failed, and Trump is the result.
BU Today: Will the insurrection, and the decision whether or not to prosecute Trump, significantly influence voters in November’s midterm elections? To Republican or Democratic advantage?
Yes, but it’s impossible to say how it may play out in the election. There are so many factors influencing who votes and who does not. The Roe v. Wade decision will also play into the elections. I foresee defeated Republican candidates across the country claiming victory despite defeat, which will cause chaos. The Republican Party has done more damage to the United States than the Communists and al-Qaeda combined.
THE SOCIOLOGY
BU Today: How do your scholarly expertise and research touch on what’s come out of the January 6 congressional hearings?
Heather Schoenfeld, associate professor of sociology, College of Arts & Sciences: In my Law and Society class, we talk about why Americans love public, intense, high-stakes legal conflicts. Usually, intensive and high-stakes legal spectacles allow us to collectively “participate” by sharing our reactions. In turn, legal spectacles, and our reactions to them, reveal and reinforce our cultural norms and values. The Amber Heard/Johnny Depp defamation case is a recent example. The vitriol toward Heard exposed a cultural backlash to #MeToo that warned women against accusing powerful men.
The January 6 Select Committee public hearings are an orchestrated legal spectacle designed to reinforce democratic norms against political violence. Although staged for the largest possible dramatic impact, it is unclear if the hearings were successful in this regard. The intermittent timing of the hearings, spanning over six weeks, made it difficult to sustain people’s attention. The lack of immediate and certain consequences worked against public engagement. And Republican politicians’ silence signaled that political violence is acceptable.
BU Today: You research the influence of conservative politics on rising incarceration. The Atlantic reported that compared to violent anti-democrats elsewhere, the insurrectionists were older, better educated, and white-collar. Wouldn’t we expect these people to embrace the conservative, law-and-order ethos, rather than a criminal insurrection?
It is not surprising that studies have found that compared to violent anti-democrats elsewhere, the insurrectionists were older, better educated, and held white collar jobs. People who attended President Trump’s “Stop the Steal” rally needed the ability and resources to get to Washington, D.C., and stay there a night or two. Stephen Ayres, the “regular guy” insurrectionist who testified on July 12, is representative of those who found meaning and community in their identity as Trump supporters. Trump and his spokespeople enabled the conditions for their participation in violence by demeaning and dehumanizing his political opponents over the previous four years.
The January 6 hearings began with testimony from a law enforcement officer for a reason: to grab the attention of traditional conservatives whose identity is tied to their support for law enforcement. Ayres hugging and apologizing to Capitol police after his testimony had a similar appeal. However, support for law enforcement and “law and order” in the United States has always been tied to who and what gets policed—namely Black Americans and “street crime.” In this case, insurrectionists viewed law enforcement as protecting their political enemies. Consequently, they would not have viewed the violence and vitriol against police on January 6 as contradictory to their political values.
BU Today: You teach Sociology of Law. What constraints are there on the law’s ability, in the words of your course description, to “alter social relationships” to prevent future insurrections and address the grievances fueling Trump supporters?
Law is often held up as a way of holding individual people responsible for their behavior. The larger impact of law, however, comes from what it communicates. By imposing the law on individuals, the law communicates desired social rules, norms, and values. Ultimately, however, law is just one social institution of many that influence social norms. When popularly elected politicians, radio, and TV hosts justify or remain silent on the events of January 6, their message dilutes the law’s ability to delegitimize political violence.
BU Today: What revelation from the hearings has most surprised you?
The hearings exposed the extent of the Proud Boys’ and the Oath Keepers’ planning for January 6, which is not in itself surprising. I was surprised about how successful they were at influencing the narrative on and immediately after January 6. In my memory of that day, news media reported that the crowd organically stormed the Capitol, which was what the extremist groups wanted us to think. I give a lot of credit to investigators and members of the committee for piecing together a more accurate, and unfortunately scarier, picture of what happened on January 6.
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