The ‘Unfairness’ in the J6 Prosecutions

The “Justice for J6” rally tomorrow aims to address the purported injustice in the prosecution of those who rallied at the Capitol on January 6. As President Trump stated this week (after saying on January 7 “To those who engage in the acts of violence and destruction: You do not represent our country, and to those who broke the law: You will pay.”),

I don’t think that anyone is being “persecuted.” But I do believe that there is “unfairness” in these prosecutions. Not because the J6 defendants are being prosecuted, but because only they are being prosecuted. The J6 defendants acted — rightly, in my view — on the basis of a set of beliefs that they had been wrongly brought to embrace. They must pay the price for that mistake. But it is outrageous that those who are responsible for that mistake have paid — and will pay — absolutely nothing for their own wrongs.

They acted rightly, given what they believed

As I watched the events unfold on January 6, I knew that I was personally conflicted about what I was seeing. I didn’t have any doubt about whether what they believed was true. The idea that the 2020 election was stolen is, in my view, simple insanity fueled by pathology.

But it was clear enough on January 6 that many in that crowd believed it. It was clear that many were certain that the stories they had heard and watched and shared — that ballots were destroyed, or votes for Biden were dumped into the mix in key jurisdictions in the middle of the night, etc. — were in fact true. And for those on Capitol Hill, these “truths” entailed certain patriotic obligations. They were not the oppressed. Indeed, most of the rioters were middle class and upper middle class Americans. But many of them believed they had a duty, given what they believed was true.

I was conflicted about that because I myself had argued essentially the same thing — from the other side.

I was part of many before this past election who were wargaming how bad faith could flip the election. Ours is a stable and reliable system, so long as people of good faith operate on both sides. But there were many ways, as many of us described, for people of bad faith to cheat. (See episodes 65 to 75 of the podcast Another Way for each of these ways, explained.) To this day, I am astonished and relieved that Mike Pence listened to Dan Quayle’s clear advice, and refused to explore whether indeed he had the constitutional authority to second guess the results reported from the states. Many sane (and liberal) law professors had worried for many years that the Vice President indeed had that power. That view is wrong, in my view. But it is not crazy.

Many of us had therefore wondered: What happens if bad faith wins? What should we have done if the efforts to subvert this election had succeeded? What if, contrary to the Supreme Court’s clear pronouncement, electors had voted contrary to how they were pledged? What if Mitch McConnell led Senate Republicans to refuse to follow the certified results from Pennsylvania or Michigan? And what if Mike Pence believed Bruce Ackerman’s history, and insisted that Jefferson himself had established the precedent that the Vice President retained the power to rule himself into office?

I had done more than wonder. In a talk I gave to Wolf-Pac volunteers before the election, I said that we had to be ready to do more than simply wonder. Imagining the election stolen, I said it would take “sacrifice” and that we had to be willing to do “whatever it takes” to preserve our democracy against such theft. I didn’t use the words, “storm the capitol,” and what would have been appropriate would have depended on what was happening, where. But I certainly believed that if, for example, on January 6, Mike Pence had ruled to reject the certified ballots from Pennsylvania and Michigan and Georgia and Arizona, that we must be prepared to do more than simply beg the Supreme Court to undo that theft.

I remember wondering, as I said those words, safe in my home in Massachusetts, months away from any such threat, would I really go through with what I was saying? Would I really march against the wrongfully selected president? Would I really do “whatever” it took, regardless of the consequences to me?

I don’t know whether I would have had that courage. I’ve certainly not led a life that has practiced it or demonstrated it. Yet as I watched the violence on January 6, I realized that that was precisely what I had imagined could conceivably have been required, if indeed the election was stolen. That recognition was hard to stomach, given what I believed about whether the election was in fact stolen, and what I believe about the man who has engineered to insist it has.

Many don’t believe that those who stormed the Capitol actually believed the election was stolen. And of course, we have no way to know precisely what anyone believed. We do know that many of the defendants display significant psychological and mental handicaps. Many are on the spectrum; many were extremely easy to trigger.

But they had been brought to the place where they could be so easily triggered by an intentional and self-conscious campaign of people who intended to profit from the lie that the election was stolen. Fox and Breitbart and OAN profited from the story that the election had been stolen; Trump and his cronies did as well. Both saw personal, political and financial gain flowing from the public believing what was certainly not true. And both acted to create that false belief — for their own good. These were tobacco executives, testifying that cigarettes hadn’t been proven to cause cancer, because they knew that the doubt they sowed would secure to them millions and millions more in profits — while ignoring the effect it would have on those who would continue to smoke and contract cancer.

Those who created the belief that this election was stolen are not being prosecuted by the Department of Justice. They would say their lies are protected by the First Amendment. They would say that no legal court could hold them accountable.

Maybe.

But it is certainly “unfair” that those who created the conditions that triggered the J6 defendants now suffer nothing for their acts, while the J6 defendants will go to jail. That unfairness does not mean the J6 defendants should not be prosecuted. No doubt, some will establish that they had no responsibility, given their own mental condition and the views they were led to hold. But few will be able to establish such innocence. The vast majority of these defendants should have known better and should pay a price for what they should have known but didn’t.

But they are not the only ones who should pay a price. They are just the only ones who will. That’s justice in America. And yes, that is “unfair.”

law professor, activist.