Former Bush lawyer Richard Painter on the Jan. 6 cover-up: "Like the mistake Weimar Germany made"

We haven't faced anything this bad "since the Civil War," says former White House lawyer — and it's getting worse

By Chauncey DeVega

Senior Writer

Published November 17, 2021 5:45AM (EST)

Roger Stone, Steve Bannon and Mark Meadows | The January 6th 2021 Capitol Riot (Photo illustration by Salon/Getty Images)
Roger Stone, Steve Bannon and Mark Meadows | The January 6th 2021 Capitol Riot (Photo illustration by Salon/Getty Images)

There seems to be no realistic prospect that Donald Trump and members of his inner circle, along with Republican collaborators in Congress and other financiers and organizers of the Jan. 6 attack on the Capitol will ever be punished for their many and obvious crimes. For that matter, the foot soldiers of the Trump regime are not being prosecuted to the full extend of the law either.

Donald Trump is continuing to rally his movement behind the Big Lie that the 2020 presidential election was stolen and that Joe Biden is a usurper. Trump is also targeting any Republican candidates or elected officials he deems disloyal. The Republican Party and its propaganda machine are accelerating an internal purge with the goal of purifying Trump's political personality cult. Some observers have suggested that this means Trump's movement is becoming weaker, but the opposite is true.

Trump's disgraced former national security adviser, Michael Flynn, played a key role in Trump's coup attempt, literally advocating that the military be deployed to enforce martial law and invalidate the 2020 election. If that idea had been carried through, American democracy would have been effectively suspended for an indefinite period. 

Flynn continues to make public threats against American democracy, suggesting last weekend that the U.S. should have "one religion." Some months ago, Flynn appeared to endorse the idea of a military coup, similar to the one that occurred recently in Myanmar, presumably as a way of returning to power.

It has recently been reported that Trump's coup attempt was more advanced and broader in scope than was known at the time. Former Trump campaign lawyer Jenna Ellis apparently sent detailed instructions to Mike Pence's chief of staff, outlining a plan to derail certification of the electoral votes in Congress. The idea was to throw the election into the House — something that has not happened since the early 19th century — presumably resulting in a second term for Trump. 

Steve Bannon, Trump's former campaign chairman and White House strategist, surrendered to federal authorities this week on charges of contempt of Congress for his refusal to testify before the House committee investigating Jan. 6. Bannon is not likely to be deterred by this prosecution, wishful thinking among the hashtag-resistance aside. Instead, as Salon columnist Heather Digby Parton has observed, Bannon will use this new moment in the limelight as political theater, to the delight of his neofascist fan base.

Why are Attorney General Merrick Garland and the other leaders of the Department of Justice so reluctant to use the full force of the law against the Trump regime and other Republican fascists? Is the Biden administration's desperate desire to appear "apolitical" endangering democracy and the rule of law? What, if anything, does the Bannon prosecution mean in the larger context of the Trump regime's criminal acts? or not – for its approach to the Trump regime's crimes more generally?

In an attempt to answer these questions I recently spoke with Richard Painter, who was White House chief ethics counsel under President George W. Bush. He is also a frequent guest on MSNBC, CNN and other news networks. His most recent book, co-authored with Peter Golenbock, is "American Nero: The History of the Destruction of the Rule of Law, and Why Trump is the Worst Offender."

This conversation has been edited for clarity and length.

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Why are Donald Trump and his co-conspirators not in jail for their likely or evident crimes connected to Jan. 6 and the coup plot? Are there no consequences for what they did?

The Department of Justice has not even started to investigate the higher-ups in connection to Jan. 6. The Jan. 6 committee [in Congress] cannot prosecute anything. They are also having a difficult time getting the documents and testimony they need for their investigations. Donald Trump is resisting every step of the way. In the end we will just have to wait and see what the committee comes up with when they finish their work.

I am very disappointed in the Department of Justice. It is being too deferential to Donald Trump. There has been some improvement, with the Department of Justice deciding that the Trump White House documents are not privileged. But again, the Department of Justice is not investigating Donald Trump and other senior people in the White House who may have been involved in the events of Jan. 6.

It is unfortunate that the Department of Justice has decided to go that route, because whether or not a crime is prosecuted should not be a political judgment call. If someone commits a crime — including insurrection and sedition, or inciting insurrection — it should be prosecuted. I am very upset the Department of Justice has not appointed a special prosecutor to focus on Jan. 6 as well as other alleged criminal acts committed by the Trump administration.

RELATED: Is Mark Meadows next? Jan. 6 committee plans to "move very quickly" on criminal charges

One of the common excuses and deflections is that we must be patient because the law moves slowly. There are levels of "slow." But how do we explain the lack of urgency being shown by the Biden administration and the Department of Justice?

They need to appoint a special prosecutor. I do not expect Merrick Garland and Biden's other appointees to prosecute Donald Trump and his cronies in connection with the events of Jan. 6. That would look too political. This is not a question of things taking too long — they have not even started their work.

Garland is trying to avoid the appearance of looking "political" by aggressively pursuing the Trump administration and its allies. But a coup and insurrection are by definition political acts. Please help me sort out Garland's logic.  

There is one type of politics in a representative democracy, and there is another type of politics in an authoritarian dictatorship or a country that has otherwise descended into chaos. The making of the law and the passing of laws is a political process, where Congress is involved in agreeing what the law is. Once we have a law and someone violates it as a criminal act, then they need to be prosecuted.

In a society where the law is deemed to just be political, it can be taken to an extreme. The law becomes discretionary and tied to political ideology. That's where you end up with a dictatorship, such as with Nazi Germany.

In a well-functioning representative democracy, once the law has been enacted through the political process, if someone violates it — for example, by inciting a coup or an insurrection — that person or persons is prosecuted. That is the political system I thought we lived under here in America. We should expect that prosecutors are going to do their job.

And it's critically important, because the 14th Amendment to the Constitution, Section Three, says that anyone who's taken an oath of office to support the United States who then engages in an insurrection, or gives aid and comfort to an insurrection or rebellion, is disqualified from public office.

Therefore, we could have a number of people, perhaps including the former president, Donald Trump, who are actually disqualified from public office because they gave aid and comfort to an insurrection on Jan. 6.

Steve Bannon, who is publicly implicated in the 2020 coup plot, has finally been indicted for refusing to testify before the Jan. 6 committee. What does this mean in terms of the Department of Justice and its refusal to go after Donald Trump and the other coup plotters?

The Department of Justice had little choice but to prosecute Bannon — his contempt of Congress is obvious. It might as well not be a crime, if Bannon is not prosecuted.

I see little change in attitude at the Department of Justice on the big picture: They must appoint a special prosecutor to investigate and prosecute any crimes leading up to and after the 2020 election. It is inexplicable that the Department of Justice has not done so.

I have no idea whether others in Trump's inner circle will cooperate with the Jan. 6 committee. Unlike Bannon, most were White House staffers at the time, so there is a claim of executive privilege — by Trump, not by Biden — that needs to be soundly rejected by the courts on appeal. They probably cannot be prosecuted until those appeals are exhausted.

Jan. 6 and the related events before and after that day constitute the actions of a cabal who were involved in what, by all common-sense definitions, was a conspiracy. Again, this gets to the question of urgency. That language is being actively avoided by the mainstream news media and political leaders.

Yes, that is what was taking place. We went through this when Donald Trump became president by collaborating and colluding with the Russians. What we have here is not ,collusion with the Russians but instead collusion and collaboration with domestic terrorists or insurrectionists who planned to overthrow the United States government. We have not had to deal with something of this magnitude since the Civil War, and it needs to be properly investigated.

What message is being sent if Trump, the coup plotters and his foot soldiers are not punished?

The message is that you can get away with the most egregious crimes, including insurrection and sedition, so long as you have enough political power that people do not want to stop you or otherwise interfere with you.

That is not how a representative democracy is supposed to function. We need to revisit the question of whether the most powerful people in this country are going to be held accountable under the Constitution and our criminal laws just like everyone else.

It also seems as if those who participated in the January insurrection and the Capitol assault are receiving relatively minor punishments, under Department of Justice guidelines and instructions. 

The people who showed up on Jan. 6 and invaded the Capitol should be held accountable. They should not be punished with small fines and little jail time. This was an attempted coup. It was violent. People were killed. Those who were involved should be serving time in jail. Extraordinarily light sentences are being handed out in view of what happened here, which was an attempt to overthrow the government. That is considered treason in many respects, and is one of the most serious felonies imaginable. These are not misdemeanors. These are not minor felonies. I would think people would be getting some serious jail time.

The people who are behind the events of Jan. 6 are not even being investigated, much less prosecuted. I don't believe that crowd just came out of thin air. Those events were not spontaneous. There were individuals and groups pushing them to be there and organizing and inciting those events. None of those people are being held responsible, and that may ultimately include the 45th president of the United States, Donald Trump.

At some point the full truth of Jan. 6 and the Trump regime's coup plot will be revealed to the American people and the world. I am deeply concerned that these investigations will take so long that people will be so exhausted that they no longer care. In essence, the reaction will be, "So what?" If the Trumpists and coup plotters are able to escape serious punishment, then it will mean the end of the country's democracy, because another coup is almost guaranteed to happen. Am I being too pessimistic and cynical?

That is a grave risk. People must be held accountable for their actions. These events can't be discounted or minimized as being "just a crazy insurrection" with a bunch of "crazy guys," where in the end some people are sent to prison for a small length of time and are then let out, as though nothing is going to happen again that the public needs to be worried about.

That is like the mistake that Weimar Germany made in 1923, when Hitler and his followers had the Beer Hall Putsch and thought they could take over the German government. They were all tried and sent to jail. Hitler did one year or so in prison. Then he gets out and he is elevated by the right-wing extremists as a hero. Ten years later, Hitler is sitting in the chancellor's office running the whole country.

When people engage in a coup attempt like this and are allowed to come back, it will be much worse the second time around.

From Salon's coverage of the latest Jan. 6 revelations:

By Chauncey DeVega

Chauncey DeVega is a senior politics writer for Salon. His essays can also be found at He also hosts a weekly podcast, The Chauncey DeVega Show. Chauncey can be followed on Twitter and Facebook.

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Coup Democracy Donald Trump Interview Jan. 6 Joe Biden Merrick Garland Richard Painter Steve Bannon