A year after thousands of supporters of former President Donald Trump stormed the U.S. Capitol while legislators worked to certify the election of his successor, current President Joe Biden, Harvard Law Today asked experts from across Harvard Law School to share their perspectives on that day, the events that have unfolded since, and the implications for American democracy going forward.
Below are the reflections of Harvard Law Professors Richard Fallon and Nicholas Stephanopoulos, and senior lecturer and retired federal judge Nancy Gertner.
Richard H. Fallon Jr.
Story Professor of Law
January 6, 2021, brought a shocking reminder that historical practice does not guarantee continuing adherence to constitutional norms. Like most other Americans, I awoke that morning expecting the certification of Joseph Biden as the next, lawfully-elected president of the United States to occur relatively routinely. By early afternoon, I sat in front of a television watching theretofore unthinkable events unfold.
After the quelling of the riot, I would have expected it to take many hours, perhaps days, to secure the Capitol. When congressional leaders insisted that the constitutional processes should proceed on schedule, I therefore felt a thrill of relief. By early evening, the Congress had re-convened. Our institutions looked robust once more.
But the respite was brief. Before the night was done, eight senators and 139 members of the House of Representatives voted to sustain objections to the electoral college returns from Pennsylvania, Arizona, or both. None cited any plausible evidence of substantial inaccuracy in the vote counts.
I had anticipated broad agreement on a bipartisan commission to investigate, and seek to draw lessons from, the assault on the Capitol. But a Republican-led filibuster blocked authorizing legislation from advancing in the Senate. The House’s creation of a special investigative committee has occasioned even deeper partisan division.
With the passage of time, fewer and fewer congressional Republicans remain willing to challenge former President Trump’s narrative that the election was stolen from him and that the storming of the Capitol on January 6 was a mostly peaceful demonstration. By contrast, I marvel in retrospect at the steady courage of many state and local officials from both political parties who counted and recounted ballots in the first instance and then certified the counts within disputed states. Credit is also due to former Vice-President Mike Pence, who stood firm against pressure to embrace the fantastical theory that the outgoing vice-president possesses a unilateral legal authority to refuse to count the electoral votes cast by state-certified electors.
But the past, once again, supplies no guarantees for the future. In a number of states, legislation enacted in response to the 2020 vote count now empowers political officials to take charge of ballot-counting if they choose to do so in future elections.
Looking to the future, I am not entirely pessimistic. Our constitutional institutions met the most immediately pressing challenges of January 6, 2021. But if the events of that day teach anything, it is that our institutions cannot be more reliable than the men and women who populate them and, ultimately, than the culture in which those men and women are situated.
Judge Nancy Gertner (Ret.)
Senior Lecturer on Law
On January 6, 2021, I was grading first-year criminal law exams. I had about fifty exams left. I turned on the news, assuming that watching the electoral college certification would be about as distracting as watching paint dry. I saw events unfold in real time. Surely this was not happening in my country. Surely, this was footage from elsewhere, from fragile democracies, or crumbling dictatorships. That a crowd would be so violent as to breach the Capitol perimeter, defile the House chamber — was unimaginable. That they would be able to overwhelm the Capitol police, that it took four hours to secure the building — was inconceivable.
Was January 6 the beginning of a coup, or a crowd that got out of hand? Was it a spontaneous reaction to a president who — like many an autocrat — thoughtlessly incited them, or had it been orchestrated? Or was it something in between?
I was enormously relieved when Congress reconvened that evening to finish the count, when Republican and Democratic leaders condemned the insurrection. I assumed this event would chasten them, make them realize the incendiary consequences of delegitimizing a fair election with false claims of voter fraud. I assumed it would galvanize them to prevent this from happening again. I assumed that no one would deny what everyone had seen.
But some have. The legal response has been anemic; the political response even worse. While defendants who were directly involved have faced criminal charges, they are relatively minor — demonstrating in a Capitol building, disorderly conduct, some weapons and assault charges. Prosecutors believed that they could not prove more serious charges against them; seditious conspiracy, after all, required proof of a conspiracy to overthrow the government. The House Select Committee on January 6 is delving more deeply, but it is not clear what they will be able to uncover, how significant is the intransigence of former Trump officials, how quickly their report will be issued, and with what legitimacy. While prominent commentators call for a DOJ criminal investigation not only of those who organized the attack but those involved in the attempt to overturn the Electoral College vote, there is nary a peep from the attorney general.
The political response is worse, denying what we have seen with our own eyes, calling the rioters martyrs, Antifa members, not Trump supporters, or FBI operatives, claiming that they were framed, the Democrats should “get over it.” The “it” is the most sustained attack on the Capitol since the War of 1812. I, for one, cannot.
Kirkland & Ellis Professor of Law
I’m an empirically minded law professor, so I sometimes think about the distribution of possible outcomes for American democracy. For several decades (say the 1970s to the 2000s), this distribution was fairly narrow. Sweeping changes to voting, redistricting, and basic democratic norms neither occurred nor were likely to occur. Recently, however, it seems that the range of possible outcomes has widened dramatically. In certain futures — certainly the more salient ones in media coverage — America slides into quasi-democracy or even actual authoritarianism. Barriers to voting (especially by poor and minority citizens) are elevated. Districting abuses destroy the relationship between public opinion and legislative composition. And the outright rejection of election results becomes conceivable, maybe even common.
But in other futures, on display already in states like California, governments do something about the threats of voter suppression, gerrymandering, and election subversion. They enact policies that make it easier to vote, like automatic voter registration and universal mail-in voting. They transfer authority over district lines from self-interested politicians to independent commissions. And they reinforce safeguards for vote tabulation and election certification to ensure that people’s choices at the polls are heeded.
The events of January 6, 2021 further stretched the distribution of possible outcomes. On the one hand, the end of the American experiment with free and fair elections became genuinely plausible. That’s what would have happened if the mob that penetrated the Capitol had achieved its (and Trump’s) goal of preventing Congress from recognizing Biden’s victory. On the other hand, the January 6 insurrection also galvanized the cause of election reform. The House has passed a series of bills that would transform American democracy, facilitating voting, ending gerrymandering, thwarting election subversion, and reviving the Voting Rights Act. Hobbled by its own procedures, the Senate has yet to approve these measures, but intense efforts continue to circumvent the filibuster. It’s unlikely all this activity would be happening without the spur of January 6.
So for now, American democracy continues to walk a tightrope between very different scenarios. But the tightrope act can last only so long. The future is coming, and it may well look nothing like the present.