COMMENTARY

Was this finally enough? Trump and his terrorist confederates must be prosecuted

Donald Trump led a terrorist conspiracy that aimed to overthrow democracy. What more does Merrick Garland need?

Published July 13, 2022 6:00AM (EDT)

Stephen Ayres (L), who entered the U.S. Capitol illegally on January 6, 2021, and Jason Van Tatenhove (R), who served as national spokesman for the Oath Keepers and as a close aide to Oath Keepers founder Stewart Rhodes, are sworn-in during the seventh hearing by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol in the Cannon House Office Building on July 12, 2022, in Washington, DC. (Anna Moneymaker/Getty Images)
Stephen Ayres (L), who entered the U.S. Capitol illegally on January 6, 2021, and Jason Van Tatenhove (R), who served as national spokesman for the Oath Keepers and as a close aide to Oath Keepers founder Stewart Rhodes, are sworn-in during the seventh hearing by the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol in the Cannon House Office Building on July 12, 2022, in Washington, DC. (Anna Moneymaker/Getty Images)

The U.S. government has an official policy of never negotiating with terrorists. The logic is simple: to negotiate with terrorists only encourages their attacks. Furthermore, the U.S. government also has a policy of relentlessly pursuing terrorists wherever they may be and offering them no opportunity to find sanctuary or safe haven.

To this point, Attorney General Merrick Garland and the Department of Justice appear to have suspended those rules — or at least decided they do not apply to Donald Trump and the other high-ranking members of his coup cabal.

In his public testimony before the House Jan. 6 committee, retired judge Michael Luttig, who served as Vice President Pence's legal adviser, warned that "a stake was driven through the heart of American democracy on Jan. 6, 2021, and our democracy today is on a knife's edge."

If anything, Luttig was being too gentle: In reality, Trump and his confederates (and the larger Republican-fascist movement) are holding American democracy and society hostage, and threatening to slit its throat at any moment. Every day that Trump and his coup cabal are not indicted, prosecuted and then convicted (if the evidence at a fair trial merits it) the threat they represent to American society only grows larger.

By definition, Donald Trump's coup attempt and the Jan. 6 attack on the Capitol are acts of terrorism. Violence was central to Trump and his confederates' coup plot and their goal of nullifying the results of the 2020 presidential election. Moreover, as revealed by the House Jan. 6 investigation, filings by the Department of Justice and the work of investigative journalists and other researchers, the violence on Jan. 6 was premeditated, expected, welcomed and carefully coordinated and executed.

By definition, Trump's coup attempt and the Capitol attack were acts of terrorism. Violence was central to the plan, and Trump encouraged it.

Donald Trump knew about this violence and actively encouraged it, as confirmed by Cassidy Hutchinson, who was an aide to White House chief of staff Michael Meadows. Trump was told by the Secret Service on Jan. 6 that his followers were armed with assault rifles, pistols, and other lethal weapons.. Trump then commanded the Secret Service to lower its defenses so that his armed followers could gather on the Ellipse where he directed them to march on the Capitol. Trump knew where their rage and violence would be directed, allegedly telling the Secret Service, "They're not here to hurt me…. Let my people in. They can march to the Capitol from here, let the people in and take the [metal detectors] away."

Trump's ultimate goal was to arrive at the Capitol where he, like Mussolini or some other fascist tyrant, would take control and declare himself ruler amid the rubble -- that likely would have included the broken bodies of Pence and various leading Democrats.

In an interview with MSNBC, historian Michael Beschloss described Trump's goals for Jan. 6, comparing them to Richard Nixon's conduct during the Watergate scandal:

Nixon didn't send armed terrorists up to the Capitol, and by everything that we are learning now what Donald Trump wanted to see on the 6th of January was violence. There's every sign that he wanted to see members of Congress shot or killed or taken hostage, including his vice president, who, of course, is the president of the Senate.

Donald Trump was at the center of the political violence on Jan. 6. He was the ringleader. He has demonstrated malice aforethought of and is criminally responsible for the coup and its accompanying violence.

What we saw and heard during Tuesday's televised hearing of the House Jan. 6 committee further confirmed these facts.

More evidence was presented to show that Trump was repeatedly warned by his closet advisers that his claims of election fraud were false and that violence was likely or certain on Jan. 6. He chose to ignore those warnings and encourage the violence.

Moreover, Trump's infamous tweet on Dec. 19, 2020 — "Big protest in D.C. on January 6th. Be there, will be wild!" — was designed to incite violence as part of his attempt to seize power by declaring the 2020 election null and void. We also learned from Tuesday's hearing that Trump's command during his speech at the Ellipse for his followers to march on the Capitol was premeditated and not spontaneous.


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In addition, through eyewitness testimony and other evidence, the committee demonstrated on Tuesday that Trump's followers who attacked and overran the Capitol took his commands seriously and believed themselves to be part of a noble struggle, even a "revolution" or "civil war" meant to save democracy. Some were prepared to kill and die on Trump's command.

Following the pattern of recruitment and indoctrination seen with al-Qaida and ISIS, Trump's followers were radicalized into committing irrational acts of violence.

Following the pattern of recruitment, socialization, community and indoctrination seen with al-Qaida, ISIS and other terrorist organizations, Trump's followers were radicalized by his exhortations and the right-wing propaganda machine into committing violence on Jan. 6 and beyond. In effect, Trump tried to follow the example of fascist and authoritarian leaders such as Hitler, Stalin, Suharto, Pinochet, Amin and others by assembling his own personal army of paramilitaries and other violent followers to enforce his will. On Twitter, historian Ruth Ben-Ghiat summarized this:

Like Fascists, Donald Trump provided shelter and validation to all kinds of extremists. Neo-Nazis, militia members, Oath Keepers, Proud Boys, and unaffiliated extremists with arsenals became his unofficial army on J6. Now they are the paramilitary wing of a radicalized GOP.

Tuesday's hearing again confirmed that members of Trump's inner circle, including Roger Stone, Michael Flynn and others, actively coordinating with right-wing paramilitary terrorist groups such as the Oath Keepers as part of the coup plot and Capitol attack. Likewise, Trump was encouraged by Flynn, attorney Sidney Powell and others to order the military to seize voting machines under a "national emergency" or declaration of martial law. 

Trump and his coup cabal's plot to overthrow American democracy did not end on Jan. 6, 2021. In many respects, it continues to escalate — and political violence is central to the right's plan for dominance. Last Friday, the Washington Post reported that an alleged member of the Oath Keepers had a "death list" and explosives that he hoped to use to target "officials involved in the presidential election process" as part of the coup plot to nullify the 2020 election. The Department of Justice has charged Oath Keepers founder Stewart Rhodes and several of his followers with the high crime of seditious conspiracy for their role in the events of Jan. 6 and the lethal attack on the Capitol.

This is likely just a preview of what will follow. In a recent interview with Greg Sargent at the Washington Post, Rachel Kleinfeld, an expert on political violence and the collapse of democracies, discussed the threat of escalating right-wing violence in America:

Americans need to realize that paramilitary groups could become a normal part of our political life. … For the last few years, we've seen an uptick in Republican parties at the local level — though occasionally at the state level — using militias for security at party events, having militias vote on party business, in one case in Michigan having militias introduce legislation. … You're seeing a lot of photo-ops with militia members — things that normalize their interaction with the democratic process. These militias are being used to threaten other Republicans who aren't part of this anti-democratic faction. …

The fact that political violence is going to start affecting everyday people's lives needs to get demonstrated. Americans need to understand that you can't just keep your head down, stay out of politics and avoid what's happening.

Locating Tuesday's hearings in a larger context, Rep. Jamaal Bowman, D-N.Y., told Raw Story that he believes the House committee has offered enough evidence to charge Donald Trump with seditious conspiracy. "Trump has always flirted with [Vladimir] Putin and that's because he wants to be Putin," Bowman said. "He wants to be a fascist. He wants to be a dictator. And if he was going to go down in history books storming the Capitol with his people and ultimately taking over Congress, that would be his legacy, and it seems he was fine with it."

Why have Attorney General Merrick Garland and the Department of Justice been so reluctant to prosecute Donald Trump and his confederates? The most obvious explanation is that such an act would be unprecedented in American history. No former president has ever faced criminal prosecution, let alone for crimes committed while in office. That explanation must confront the obvious fact that Trump and his many apparent crimes are themselves unprecedented in American history, and therefore merit such a response.

Beyond the implications of history and precedent, many legal scholars and other experts have concluded that Garland and others at the Department of Justice fear the prospect of widespread political violence by Trump supporters if their hero is actually indicted and faces prosecution. A recent article at Snopes quotes Claire Finkelstein, founder of the Center for Ethics and the Rule of Law at the University of Pennsylvania, responding to such considerations:

We are facing the potential dissolution of our democratic norms, and the fabric that holds our democracy together, in a manner that is as grave as anything we've faced since the Civil War. ...

I appreciate that the U.S. may be on the brink of mass violence, and I think that that has been a long time in coming. But … there are worse things than violence. We faced violence during the actual Civil War to eliminate slavery in the country. And that was a fight worth fighting. And it was the right thing to do.

Whatever one's conclusion about the relative risks and rewards of prosecuting Donald Trump and his confederates, these concerns about right-wing political violence and terrorism are not unwarranted. Inspired by the events of Jan. 6 — and by how close the coup came to succeeding — Trump and some of his acolytes have all but announced their plans for more terrorism and other acts of political violence.

Why is Merrick Garland so reluctant to act? Charging a former president with a crime is unprecedented — and could spark more political violence. Neither of those is an acceptable reason.

At his political rallies, and through emails and the larger right-wing propaganda machine Trump has repeatedly used the technique known as stochastic terrorism to radicalize and inspire his followers into committing acts of violence against their perceived "enemies." Trump told his overwhelmingly white followers at one event that they had to be ready to die to stop "critical race theory" and the imagined threat that it somehow represents to the (white) American family.

Trump frequently uses white supremacist talking points and overtly racist appeals in an almost blatant attempt to inspire a race war, even telling his followers to descend upon majority Black and brown cities to seek vengeance if he is prosecuted for his crimes. During a speech in Las Vegas last Friday, Donald Trump again threatened to "take over" "Democrat-run" cities when and if he becomes president again.

Trump has also repeatedly suggested he will pardon his followers who attacked the Capitol on Jan. 6 (if he regains power) because they are" patriots" or "political prisoners" and "victims" of unfair prosecution.

Last Saturday at a rally in Anchorage, Alaska, Trump delivered a profanity-filled speech repeating the Big Lie about the 2020 election — claiming that he is somehow still president because he actually won — threatening transgendered people, attacking Joe Biden and exciting his audience into ecstatic chants of "USA! USA!" in support of Trump's hope to return to the White House as a conquering hero in 2025.

As I explained in a previous essay at Salon:

Social scientists and other researchers have shown that there are many millions of Trump's followers who support terrorism and other forms of political violence against the Democrats and their supporters in order to protect "real America" (meaning, of course, white America). New research commissioned by the New Republic shows the extent of that danger: More than 50% percent of Republicans believe the Jan. 6 attack on the Capitol was an act of "patriotism."

Here is a thought experiment for those observers who have convinced themselves that by ignoring Donald Trump and his political hate rallies, the danger they represent to the country will somehow disappear. Donald Trump received 74 million votes in 2020 — roughly 11 million more than he did in 2016. If only 10% of those voters are willing to obey his incitements to political violence, that's 7.4 million people, a potential force so large that it would throw American society into total chaos and destruction.

Let's take that a step further: If only 1% percent of Trump's voters, or 740,000 people, venture into political violence, that would still be a massive national emergency. If you reject that number as unrealistic, then let's take it to 0.1% of Trump's voters, or 74,000 right-wing terrorists and other extremists. Again, that would be a nearly insurmountable problem for law enforcement, the military and other security forces.

Consider the following scenario. Donald Trump is warned by one of his loyalists in the Department of Justice or elsewhere in the federal government that his indictment is imminent. Trump retreats to Mar-a-Lago and literally turns it into a type of bunker, summoning thousands of his followers to surround the Palm Beach resort to protect him from being taken into custody by the Department of Justice or other law enforcement. Thousands of Trumpists and other elements of the right — including paramilitary forces — flock to Trump's headquarters-bunker to protect him and the MAGA movement from the "deep state," the "socialist Democrats" and other imagined enemies.

Across the country, right-wing paramilitaries and "lone wolves" engage in widespread acts of terrorism and other political violence against Democrats, "RINOs," public officials, journalists, "Hollywood," judges, law enforcement and others deemed to be "the enemy" in an effort to force the Department of Justice and the Biden administration to back away from prosecuting Trump for his crimes.

As national security and other experts have warned and predicted, the prosecution of Donald Trump and his coup cabal will likely push the United States one step closer to a second civil war or sustained right-wing insurgency that will most closely resemble "the Troubles" in Northern Ireland.

In all likelihood there will be blood, violence and mayhem if Trump and his confederates are (at last) prosecuted for their high crimes. But the alternative is simply unacceptable. Not to prosecute Trump and his co-conspirators would mean that right-wing political terrorism (which, in practice, means fascism) and those who wield it are holding American democracy hostage. 

In that scenario, every future election — national, state or local — could potentially be subject to the threat of violence from Republicans and the larger neofascist movement. In such a country, the events of Jan. 6 and the surrounding coup attempt, including the threat of martial law, could no longer be understood as extraordinary or aberrant. They would become the norm.

American democracy is on the verge of collapse because of repeated attacks by the Republican-fascists and the larger right-wing movement. Not to prosecute and punish Trump and his confederates for their acts of terrorism would mark one more big win in their war on democracy, the rule of law and the Constitution. If Merrick Garland is afraid to prosecute Donald Trump for fear of violence or some other reason, he should be asked to resign by Joe Biden and then replaced by someone who is willing to do what is necessary and required to protect American democracy and the rule of law.

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By Chauncey DeVega

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

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