The prospect of accountability for President-elect Trump and those who played a role in the storming of the Capitol is dimming as he’s set to take office and the GOP garners control of Washington — to the dismay of his critics.
Trump’s two election interference cases have both hit major roadblocks ahead of his return to power, and once in office he’s pledged to pardon many of the 1,500 charged in connection with storming the Capitol.
It’s a disappointment to Democrats and others wanting justice for what they see as one of the ugliest days in the nation’s history.
And it’s an episode they referenced frequently as a referendum for voters, including in Vice President Harris’s closing speech at the Ellipse — the same spot from which Trump encouraged his own supporters to march toward the Capitol.
“The whole reason we have a rule of law is to try to hold accountable the people who have traditionally not been held accountable. That is people with power,” said Rep. Jamie Raskin (D-Md.), a former member of the House Select Committee on Jan. 6.
“This is an asymmetry we’ve been pointing out from the beginning that there has been relative accountability up until this point for the people who smashed the police officers over the head with Confederate battle flags or speared them with Trump flags or stormed the Capitol and so on — vis a vis the masterminds behind the whole process.”
Trump’s conduct on Jan. 6, 2021, was under the magnifying glass of the now-disbanded House select committee. That panel worked as the Justice Department (DOJ) ramped up what would become one of its largest-scale prosecutions, though that effort has also been criticized by Democrats and other critics for moving far too slowly.
Trump would later be indicted by special counsel Jack Smith for his role in seeking to block the peaceful transfer of power with an indictment in Georgia alongside numerous co-defendants following just weeks later.
But those prosecutions have hit serious snags, with Smith moving to dismiss the Jan. 6 case without prejudice. He cited internal DOJ policy barring the prosecution of a sitting president.
Though dismissing the charges without prejudice opens the door a crack to refiling them in the future, prosecutors would face an uphill battle to do so, including making the case that the statute of limitations was on pause while Trump was in office.
In Georgia, an appeals court judge declined to toss Trump’s case entirely, but Judge E. Trenton Brown III disqualified Fulton County District Attorney Fani Willis due to her relationship with a top prosecutor on the case.
Willis has since appealed the decision to the state’s Supreme Court, but her disqualification may doom the case.
The state’s high court must first decide whether to hear the case at all. If it lets the ruling stand, the case would be handed off to the Prosecuting Attorneys’ Council of Georgia, a nonpartisan state agency. The agency could then send the case to another district attorney’s office, which would decide whether to proceed, appoint a special prosecutor or handle the case itself.
Even if the court hears Willis’s appeal and rules in her favor, she may not have a chance to resurrect the case until 2029 — after Trump has left office — since legal experts agree that sitting presidents cannot be criminally prosecuted.
For Democrats, Trump’s reelection is the ultimate lack of accountability for his role in igniting the crowd that stormed the Capitol.
“Trump won the election. … It is pretty pathetic that the officers who defended our lives are so disrespected and that the criminal who egged them on is now going back into the White House,” said Rep. Zoe Lofgren (D-Calif.), another former member of the Jan. 6 committee.
“You know, he has vowed to pardon the criminals who attacked the Capitol. People died. I always make a point of calling some of the officers who were injured on the sixth so they know it’s not the whole world that has forgotten their sacrifice.”
With Trump’s return to the White House imminent, many Jan. 6 defendants have been emboldened. They’ve asked for delays in their trials or sentencings, citing their future pardons, which judges have largely denied. Some rioters have asked for permission to enter D.C. for Trump’s inauguration, though only one such request has so far been granted.
Enrique Tarrio, ex-national chair of the Proud Boys, took the risk of testifying in another case, but he was combative when on the stand, refusing to answer questions while under oath despite waiving his Fifth Amendment rights amid his own prosecution on seditious conspiracy charges.
Guy Reffitt, the first Jan. 6 rioter to face trial, squared off with a judge during his resentencing last month after the Supreme Court narrowed an obstruction charge he and scores of other rioters faced.
Reffitt defiantly told the judge he was “in his feelings” about what he perceived as “lies and the craziness” about the riot — until Trump won.
“No one has a problem with your feelings,” U.S. District Judge Dabney Friedrich retorted. “It’s the actions you took with your feelings.”
U.S. Attorney General Merrick Garland has described the Jan. 6 prosecution as one of the “largest, most complex, and most resource-intensive investigations” in the agency’s history. But it’s taken several hits that threaten to taper its impact.
Four other defendants have been resentenced following the Supreme Court’s ruling last summer on the count of obstructing an official proceeding, a charge prosecutors have used to tie rioters’ conduct to the certification of the 2020 presidential election that was halted as a result. In the wake of that ruling, the Justice Department also opted to drop the charge against about 150 defendants and continues to assess remaining cases.
“There’s no question that some of the defendants are currently still very empowered, and you have to imagine that they’re not going to be nearly as deterred from engaging in behavior that violates the law — particularly something that Trump may want them to do — in the future,” said Mary McCord, former acting head of the Justice Department’s National Security Division and a longtime federal prosecutor.
During the campaign season, Trump declined to acknowledge he lost the election, and this week he criticized President Biden for honoring two members of the Jan. 6 committee with a Presidential Citizens Medal.
“I think the bedrock of a true democracy is a peaceful transition of power,” said Rizwan Qureshi, a former federal prosecutor with the U.S. attorney’s office for D.C. “That’s why those who engaged in actual violent conduct on that date need to be held accountable … because accountability and respect for rule of law are necessary to deterring political violence and preserving our democracy that I think we take for granted every day.”
