I Prosecuted the Capitol Rioters.
They Have Never Been More Dangerous.
Jan. 24, 2025
By Brendan Ballou
Mr. Ballou is a
former federal prosecutor.
On
Jan. 6, 2021, Jalise and Mark Middleton, a married couple from Texas,
trespassed onto the Capitol grounds and joined thousands of rioters gathered at
the building’s West Front.
The
assembled mob was assaulting a thin line of officers, and pepper spray wafted
through the air. Rather than retreating in the face of violence, the
couple pushed up against the
makeshift barrier the police had established, hit officers and tried to drag
one into the crowd. They gave up only after they were pepper-sprayed
themselves, and though they did not make it into the Capitol, they were proud
of what they did: Afterward, Ms. Middleton wrote on
Facebook, “We fought the cops to get in the Capitol and got pepper-sprayed and
beat but by gosh the patriots got in!”
I
know this because I was one of the scores of lawyers who prosecuted the
rioters, and was part of the team that tried the Middletons specifically. (On
Thursday, I left the Justice Department, and speak only for myself.) One moment
from their trial has stuck with me. Sitting in the courtroom in the awkward
minutes before their verdict was announced, I noticed that Mr. Middleton was
wearing “TRUMP” socks, with the president’s face stitched into the side. That
small sign of fealty struck me as incredibly sad. The Middletons were ready to
go to prison for a man who, quite likely, didn’t care about them at all.
The Middletons were convicted on all counts, including
charges of assaulting federal officers. But on Monday, Mr. Trump pardoned them
and nearly 1,600 other people who attacked the Capitol
in his name. I think he did so not out of sympathy for the rioters, but because
their freedom serves his interests.
For
while some convicted rioters seem genuinely remorseful, and others appear
simply ready to put politics behind them, many others are emboldened by the
termination of what they see as unjust prosecutions. Freed by the president,
they have never been more dangerous.
Take
Stewart Rhodes, whose Oath Keepers group staged firearms and ammunition near Washington on
Jan. 6 in anticipation of a “bloody and desperate fight.”
Or Enrique Tarrio, whose Proud Boys led rioters into the Capitol and who had
declared just after the 2020 election that while he and his followers would not
start a civil war, they would be sure to “finish one.”
They
are now free to pursue revenge, and have already said they want it. Upon his
release this week, Mr. Tarrio declared that “success is going to be
retribution.” He added, “Now it’s our turn.”
The
effect — and I believe purpose — of these pardons is to encourage vigilantes
and militias loyal to the president, but unaccountable to the government.
Illiberal democracies and outright dictatorships often rely on such militia
groups, whose organization and seriousness can range widely, from the
vigilantes who enforce Iran’s
hijab dress code to the United Self-Defense Forces of Colombia that have killed
government opponents.
Here in America, lynch mobs and the Ku Klux Klan bolstered
a racial caste system with violence that state governments, for the most part,
were unwilling to commit themselves. But for decades, we had little reason to
fear that vigilantes or militias would enforce the will of the state.
That
may be changing. Rioters who assaulted police officers at the Capitol
have called for politicians
who oppose Mr. Trump to be hanged, declared that “there will be blood,” and
that “I plan on making other people die first, for their country, if it gets
down to that.” But it’s not just their readiness for violence. One officer,
who’d worked lots of riots, explained to me how Jan. 6 felt different: Most
rioters know at some level what they’re doing is wrong, he said, but these guys
thought they were right. Monday’s pardons will reinforce these rioters’ beliefs
in their cause, and their loyalty to the man who leads it.
Mr.
Trump seems excited about this possibility. When asked Tuesday if groups like
the Proud Boys and Oath Keepers had a place in the political
conversation, he said, “We’ll have
to see,” adding that “these were people that actually love our country.”
There
is great value to him in having members of these groups released, doubly loyal
to him, and eager to carry out his agenda and silence his critics through
violence. Mr. Trump has shown his willingness to use his pardon power, and
little stops him from doing so again.
What
might happen next? Vigilantes could harass, assault or even kill perceived
enemies of the state. Under the thin pretext that these vigilantes were acting
in self-defense, the president could pardon them for federal crimes, or
pressure pliant governors to do the same for state ones. In such a scenario,
the president could put those loyal to him above the law, quite literally. This
kind of violence was a part of our past; it may be a part of our future.
This is a frightening possibility, but it is not an
inevitable one. Groups like the Institute for Constitutional Advocacy and
Protection at Georgetown Law are already working with state officials on
legislation to shut down paramilitary activity that, among other things,
interferes with government proceedings or people’s constitutional rights. Local
law enforcement can and should prioritize protecting the groups that unlawful
private militias may target first, such as immigrants, trans people and opposition
politicians.
These
efforts are particularly urgent now, because of how many of our elected
officials have changed their calculus about the attack. Elise Stefanik, a
Republican in the House, once said that
the rioters should “be prosecuted to the fullest extent of the law.” Three
years later, she was calling them
“hostages,” and she is now the president’s pick for ambassador to the United
Nations.
Shortly
after the attack, Kelly Loeffler, then a Republican senator from Georgia, said that “the
violence, the lawlessness and siege of the halls of Congress are abhorrent.”
Yet in the years that followed, she repeatedly called the congressional investigation into the
attack a “sham,” and said that any indictment based on its work “should
be dismissed out of hand.” She, too, is now nominated to serve in the
president’s cabinet. Even Mr. Trump once called Jan.
6 a “heinous attack,” and said “to those who broke the law, you will pay.” His
position, quite obviously, has changed.
Though
Congress is required by law to establish a
plaque honoring police officers who defended the Capitol, congressional leaders
have failed to do so. It seems astounding that they would deny recognition to
those people who saved their lives. But some officials’ ambitions require doing
exactly that.
The
president’s pardons are part of this collective attempt at forgetting.
Illiberalism depends on hiding the crimes of its past, whether it is Jair
Bolsonaro, when he was president of Brazil, celebrating the
1964 military coup in his country, or Vladimir Putin’s government repudiating the
acquittals of the Soviet Union’s political enemies.
The past matters a great deal to the enemies of democracy,
and we should not cede it. Victims of Jan. 6 should sue Congress to have their
memorial installed. And academics should save the hundreds of criminal
complaints on the federal docket that explain in irrefutable detail what each
defendant did that day.
The rest of us, too, must keep the horrors of Jan. 6 from
being forgotten. Memorialize the day. Read about the attack, and watch the
videos. Keep it alive in your conversations. Doing so matters. For in a time
when many politicians’ careers depend on forgetting, memory itself is an act of
resistance.
