It’s been two years since the January 6th attack on the U.S. Capitol. Since then, we’ve come to understand a lot about the groups and individuals who planned and carried out the attack, with much of that information coming from the House January 6th Committee, which issued its final report last month.
But even after the Committee’s report, there is unfinished business that remains, like how to continue holding those responsible for the attack accountable, and how to address the threat from paramilitary groups like those that attacked the Capitol that day. To discuss the paths forward we have Mary McCord and Andrew Weissmann.
Mary is Executive Director of the Institute for Constitutional Advocacy and Protection and a Visiting Professor at Georgetown University Law Center. She previously held senior national security roles at the Justice Department and is a member of Just Security’s Editorial Board. Andrew is also a former federal prosecutor with decades of Justice Department and FBI experience, including a senior role on the team for Special Counsel Robert Mueller.
Show Notes:
It’s been two years since the January 6th attack on the U.S. Capitol. Since then, we’ve come to understand a lot about the groups and individuals who planned and carried out the attack, with much of that information coming from the House January 6th Committee, which issued its final report last month.
But even after the Committee’s report, there is unfinished business that remains, like how to continue holding those responsible for the attack accountable, and how to address the threat from paramilitary groups like those that attacked the Capitol that day. To discuss the paths forward we have Mary McCord and Andrew Weissmann.
Mary is Executive Director of the Institute for Constitutional Advocacy and Protection and a Visiting Professor at Georgetown University Law Center. She previously held senior national security roles at the Justice Department and is a member of Just Security’s Editorial Board. Andrew is also a former federal prosecutor with decades of Justice Department and FBI experience, including a senior role on the team for Special Counsel Robert Mueller.
Show Notes:
Paras Shah: Hello and welcome to the Just Security podcast. I’m your host, Paras Shah.
It’s been two years since the January 6th attack on the U.S. Capitol. Since then, we’ve come to understand a lot about the groups and individuals who planned and carried out the attack, with much of that information coming from the House January 6th Committee, which issued its final report last month.
But even after the Committee’s report, there is unfinished business that remains, like how to continue holding those responsible for the attack accountable, and how to address the threat from paramilitary groups like those that attacked the Capitol that day. To discuss the paths forward we have Mary McCord and Andrew Weissmann.
Mary is Executive Director of the Institute for Constitutional Advocacy and Protection and a Visiting Professor at Georgetown University Law Center. She previously held senior national security roles at the Justice Department and is a member of Just Security’s Editorial Board. Andrew is also a former federal prosecutor with decades of Justice Department and FBI experience, including a senior role on the team for Special Counsel Robert Mueller.
Mary, we now have an 800-page report from the January 6th Committee along with thousands of pages of transcripts from witness interviews, but what do we not know? What do we still need to find out?
Mary McCord: Sure, the report is incredibly comprehensive in putting forth the evidence that supports this multi-step conspiracy by the former President and his allies to prevent the peaceful transition of power, culminating, of course, on January 6th. But it does not go into detail about things that I think are important for the American public to learn, or at least for governmental officials to learn more about. And I would put close to the top of that list an assessment of the intelligence profile, and I say profile instead of failures because I don't know that there was a failure of intelligence.
I think there was a failure of actioning on that intelligence, and the question to my mind, and I know there was a team – a blue team, I believe it was as part of the House Select committee – that did spend a long time and a lot of focus on what intelligence gaps there might have been and what else could have been done differently in terms of acting on that intelligence, but that hasn't really made it, into this lengthy report. And many have talked about a failure of imagination and that kind of thing, and I think one of the things that was unexpected on January 6th – notwithstanding all of the information that was known, including information that I myself provided to federal and local officials – there was just, a failure to assess, to really understand and appreciate how Trump's own statements on January 6th might further fuel, what was already pretty violent rhetoric. And that's something that the House Select committee also mentioned.
The other thing I think that still requires study is the role of social media and if there is other regulation that should be considered, for example, because the online rhetoric played a big, big role in recruiting people to come to D.C. on January 6th, and to come armed, and to come intending to prevent the counting of the Electoral College vote.
Paras: Andrew, do you have any thoughts on what gaps need to be filled?
Andrew Weissmann: I completely concur with Mary on the sort of intelligence community, law enforcement failures. I will use that term on January 6th and the lead up to January 6th, and so I think that's something that was discussed but not really fully explored in the report, and to put a sort of fine point on it, in terms of the agencies we're dealing with, DoD, the Department of Defense, the FBI, and the Department of Homeland Security and Secret Service, and I think there needs to be an incredible deep dive on first exactly what intelligence they have. I think that's been largely done, but I don't have full confidence that we know exactly what was done and then why it wasn't acted on. And I think that goes to the deeper issue of whether it wasn't acted on because of factors involving politics and race. And it's extremely important for the public to know why that intelligence was not acted on, and the larger issue of can this ever be prevented or the risk of it happening being reduced going forward.
The pessimistic view is that there was such an undermining of even what are traditionally apolitical institutions that the reason they did not act on January 6th had had a lot to do with politics and not wanting to take on the former President and his allies. And that is an incredibly important thing for the public to know and to figure out if there is some way to reduce that risk.
I don't think there's a way to eliminate that risk. That's one of the things that we learned during the Trump administration is the insidiousness of his ability to infect institutions that Mary and I are sort of beloved by us that we saw politicized, but I think it's really important to, with each of those institutions – DoD, FBI, Secret Service, DHS, Department of Homeland Security – to know what did they know and why they did not act on it.
And then a final point is that the report suggests that in advance of January 6th, there were what you would imagine would be the natural discussions about who was going to take the lead in responding on January 6th, and I found the testimony of Mark Milley quite interesting.
Paras: Mark Milley is the former chairman of the joint chiefs of staff.
Andrew: He was apparently of the view that everyone knew that violence could be anticipated. That was his phrase, everyone knew, and there's a lot of sort of passing around of the hot potato of who was going to be the lead with his understanding. That seems quite credible to me, that the Department of Justice was going to be the lead. And then you have people, like Richard Donoghue, the Department of Justice, denying that they were going to be the lead, um, at least in whole. And there's a problem there about exactly who was going to be the lead. And it's inconceivable to me that there was not a lead on this day to coordinate this. You would not have an event like this with every major political leader, at the national level in the country, being at the Capitol without having, some, articulated plan and lead. Whether it was going to be sufficient or not is another story, but you would definitely have a plan of how they were going to deal with that issue.
So I think that is the main issue that needs to be, in my mind, to be focused on. I do think that's something that the intelligence community and law enforcement community could undertake, Merrick Garland could undertake it. I don't suspect that he's going to. I do think that's a failure on his part, and I think it's a failure on the part of Congress not to have a bipartisan group assessing this much in the way that we had for 9/11 with an external threat. But here I think in many ways it is at least as important to have this because of the serious potential that politics and or race played a major role in why there was not an appropriate response in anticipation of what was gonna happen on January 6th.
Mary: Could I just also chime in on the politics and race point, because I think it really is important. I think if we had seen comparable intelligence, comparable chatter in social media, comparable chatter in the different types of communications that were being forwarded on to our intelligence and law enforcement community, if that had been Islamist extremist chatter, for example. I don't think there is any question at all that we would've seen a much, much different law enforcement response in terms of the preparedness of protecting the Capitol and the members of Congress on January 6th.
Andrew: I agree with that, I think the same would be said if it was a Black Lives Matter protest, and in fact, we have that.This is not to speculate because we know what the response was, and we know, for instance, just to take one example, the deputy director of the FBI at the time said this was the single greatest threat facing the country at the time, and ordered up every single field office in the FBI to respond, which I know was highly controversial within the FBI for that to happen.And again, I think that's because of a sense of politics and race having infected the FBI response to the Black Lives Matter protests.
Paras: Let's talk about the paramilitary groups because they played a major role in planning and carrying out the attack. What have we learned about those groups and what are they doing now?
Mary: I think we learned a lot in particularly Chapter Six of the report about the connections between paramilitary groups, in particular the Oath Keepers, the Proud Boys, the Three Percenters and people very, very high up in Trump's orbit. I mean, there are text messages linking Oath Keepers members, Proud Boys members with high level people or people connected to the Administration. People like Robert Weaver, who was a failed Trump appointee, who was nevertheless a, you know, a connection point between members of paramilitary and those in Trump's orbit. There was the CEO of overstock.com, Patrick Byrne, who actually appears to have paid for travel by Enrique Tarrio, the head of the Proud Boys and other Proud Boys to come to Washington, D.C. There were the connections with Roger Stone, of course very well within Trump's orbit, with Oath Keepers and Proud Boys who were providing security for him. And there was this real sense among the paramilitary organizations that they were part of the club now. They were actually a partner to the high level Trump figures who were planning for what was going to happen on January 6th.
And when I say planning for, I don't mean a riot on the Capitol, but they were planning for an effort to influence Congress, to reject Vice President Pence, to reject the Electoral College ballots from the swing states. Since then, we've seen sort of a very short term going underground, I'd say, of paramilitary organizations and extremist organizations quieting down, disbanding their national presence. Proud Boys disbanded, its sort of national organization in favor of local chapters.
The Three Percenters did the same, they disbanded their national structure in favor of local chapters. And that's been an organization that has many different chapters for years. And they instituted a very decentralized, localized approach. It's been described in various ways. You know, we've got Steve Bannon's precinct plan, take over your precincts at the election, precinct level, become election officials, become poll workers. Work your way up. And we’ve seen that play out over the last two years where we've got extremists – rather than planning these mass demonstrations in Washington D.C. – we have them threatening local elected officials, running for and becoming election officials themselves, threatening school board members, showing up at county board meetings intimidating and armed, we see them threatening people even running for election, and injecting their propaganda into the culture wars, mixing this sort of politicized, and militarized policy argument, mixing that up with paramilitary activity and paramilitary techniques.
And we've even seen, for example, pressure campaigns, recall campaigns against moderate Republicans in favor of election deniers and extremists. Extremists who are anti-LGBTQ, anti-immigrant, white nationalists, Christian nationalists, et cetera, to really try to mold and conform policy at the local level and push that upward. And that, I think, is more difficult to combat in many ways than organized marches on Washington.
Paras: Okay, so those groups are taking a more local approach and they're less focused on big events. But what can be done about it?
Mary: There's just a lot of understanding that needs to be part of our dialogue about how we view the First Amendment, and not just how we view it, but what it actually means, what it actually protects. It does not protect violence. It does not protect incitement to violence. It does not protect paramilitary groups who engage in armed, coordinated opposition to the government or even usurpation of law enforcement. And that's been made clear in case law.
We need a better understanding of what the Second Amendment actually protects. And there is a mythology that's quite widespread, including among law enforcement and the military, that the Second Amendment protects private militias, private paramilitaries, and has always been thought to protect it, to be a bulwark against the supposed tyranny of the government. But if you actually look at history and the Constitution and how it's been interpreted by the Supreme Court, that's completely debunked. Even before the founding, even before the Constitution, the colonies had militia acts because they relied on militias as their defense against enemies.But what that meant is that the governor could call forth able-bodied people to be the defense of the colony against enemies. It did not mean, and never meant, that citizens could arm themselves against the government, and the Second Amendment the Supreme Court has held ever since the late 1800s does not prevent states from prohibiting private paramilitaries.
So I think first of all, we need to understand that better. We need that to be, uh, our public officials to be talking about this.We need a debunking of the mythology about paramilitaries. And then we need these laws to be enforced. And if the laws are not adequate, we need to think about additional laws. And I have worked with Congress member Jamie Raskin for the past year on a draft federal bill that would include not just criminal penalties, but importantly, civil enforcement mechanisms that I think would be more effective in trying to dismantle some of these organizations consistent with first and Second Amendment rights. You have a right in many states to carry a firearm openly. You don't have a right to collectively join with other citizens while armed and form your own private army.
Paras: As we reflect on this anniversary of this attack, what are the key lessons we should take away?
Andrew: So I sort of had a number of thoughts. One is, to me it underscored something that was apparent during the Trump administration, which is the enormous fragility of our democracy and our institutions and the rule of law in this country. And in many ways, I think, you know, Mary and I are lawyers, so we think about it in terms of, oh, well something can be done and there's structures that can be put in place, but ultimately, you can't just look at the Department of Justice and the legal system as solving this problem if it's in the hearts and minds of Americans, with a sufficient number of people. And that's sort of depressing, but I think that's a real lesson from the Trump Administration. And there are a variety of reasons for that, but you know, and there are things that would be very, very hard to change, such as the pardon power.
The second is that, but for the actions of certain individuals, we really would've gone over the precipice, whether that is Don McGahn who politically, I disagree with probably in so many ways, but was willing to say no, and to sort of prevent certain things from happening. Mark Esper, Mark Milley, people of the Department of Defense, with the military, had a real sense of the Constitution. Those are individuals, and much of what Trump wanted to do by the end was realizing that, that one of the reasons there was an attack on the so-called deep state was get rid of civil service, was to put in people like Kash Patel to deal with not having people like, an Esper or Mark Milley or Don McGann, to have people who are much more malleable. People who were either fully bought in or basically had no principles to begin with, and were willing to go along. And so strengthening the civil service would be important even though it's not a fail safe, but I think that wouldbe important.
And then the final thought I had, which is a Department of Justice admonition, is this is not a time to look the other way and to think that you can avoid this problem by just sticking your head in the sand. If you have an insurrectionist, whether they are sitting in Congress or not, they need to be held to account. This is a time for the Department of Justice to hold people account to the rule of law, and you really can't look away, and yes, it could be controversial. Yes, it could be criticized, but I think that if you go down the root of appeasement and pretending that it doesn't exist, you are not helping anyone and you are setting a terrible precedent for the future. This is a time that you have to be clear-eyed and have a lot of backbone.
Mary: You know, I can't say anything any more eloquent than what Congressmember and Vice Chair of the Committee,Liz Cheney, said, which I have kept in mind so many times since she said it, which is that [Cheney audio] “our institutions only hold when men and women of good faith make them hold regardless of the political cost. We have no guarantee that these men and women will be in place next time.”
And I think that's in large part what Andrew was just talking about. And I think it's so important. And so the question is what do we do to ensure that we have those good men and women going forward? And I am heartened that election deniers, at least at the state level, people who were running for offices that would've been in a position to be involved in certifying the votes, those people lost their elections. And the fact that they lost their elections and the fact that we know by looking sort of at the polling data and the votingdata that they lost because voters came out and said they actually were interested in protecting democracy. And inparticular, young people who I feared were apathetic and, uh, had a view of I can't be bothered with all this politics. We know that the 183 to 35 year old voters did turn out and turned out in part because of the desire to shore up democracy. At least we know that from polling. And so that gives some hope, going into 2024, that there are people who do care deeply about our democracy.
Paras: Let’s leave it there with a note of hope on a dark anniversary. Mary, Andrew, thanks very much.
The Just Security podcast is produced in partnership with NYU's American Journalism Online program. AJO trains students to become world class journalists, no matter where they live or work. Find out more about AJO, and how you can apply, in our show notes.
This episode was hosted by me with co-production and editing by Tiffany Chang and Michelle Eigenheer. Our music is the song “The Parade” by Hey Pluto! Special thanks to Clara Apt, Mary McCord, and Andrew Weissmann.
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