Stanford scholars react to Capitol Hill takeover

On Wed. Jan 6, a mob of pro-Trump supporters stormed the U.S. Capitol building, disrupting the certification of the electoral vote count for President-elect Joe Biden and causing members of the Senate and House to evacuate their chambers.

Biden called what occurred an “insurrection” that “borders on sedition.” What do we know about the people who turned a protest into a violent demonstration at the nation’s capital? What were their likely motivations? And what happens next?

Here, Stanford scholars – from legal experts to political scientists – share their thoughts on some of these pressing questions, as well as their thoughts on what led to an aggressive act of rebellion against the American government.

Weighing in on the Capitol takeover are:

• Gregory Ablavsky, associate professor of law
• Bruce Cain, professor of political science in the School of Humanities and Sciences and director of the Bill Lane Center for the American West
• Larry Diamond, senior fellow at the Hoover Institution and at the Freeman Spogli Institute for International Studies (FSI)
• Frank Fukuyama, Olivier Nomellini Senior Fellow at FSI
• Shirin Sinnar, professor of law
• David Sklansky, Stanley Morrison Professor Law; faculty co-director of the Stanford Criminal Justice Center
• Stephen Stedman, senior fellow at FSI
• Robb Willer, professor of sociology, School of Humanities and Sciences

 

As people try to make sense of what happened in Washington on Wednesday, what do you think led to these events?

Diamond: What is occurring is the product of years of disinformation and rising extremism and defection from democratic norms, particularly on the extremist right, which has been fed by the support and indulgence of President Donald Trump and other politicians who have sought to mobilize grassroots political anger and disaffection for their own political ends. Analyses of public opinion, including this one that I was involved in, have been warning for years that there was dangerous and growing support for political violence if their party or political program did not prevail.

Social scientists and political commentators have been warning for several years that Trump and other right-wing populist politicians were feeding a dangerous climate that could spill over into violence.

Stedman: Part of Donald Trump’s strategy since 2016 was to cast doubt on our electoral legitimacy. This strategy was amplified during the pandemic when so much of the country implemented early voting and vote by mail, which Trump and his acolytes relentlessly criticized as fraudulent methods. His strategy was aided and abetted by Fox News and its commentators, as well as by various social media personalities and websites.

Wednesday was the culmination of that strategy. The electoral count was the last possible chance for Trump to keep power. The strategy was shamefully supported by senators like Josh Hawley of Missouri and Ted Cruz of Texas, as well as key members of the Republican House leadership. This all ratcheted up the stakes of yesterday’s electoral count, and Trump’s supporters were there yesterday to pressure Republicans to bend to the President’s will, and failing that to prevent the count from taking place.

 

Given that Trump has been falsely denying the election results and encouraging protest on Wednesday, are you surprised that the Capitol police were so unprepared for the violence that took place?

Sinnar: The violence came as no surprise, but the fact that “protesters” could so easily access the Capitol – and remain there for hours – is stunning. The government response is striking in light of the massive surveillance and violence deployed on racial justice protesters last year, including by the National Guard, in cities across the United States. While law enforcement officials say they didn’t want to respond to election protesters with an overt military presence, no such respect for free expression or democratic legitimacy characterized the response to protests against police brutality, especially at the federal level.

Cain: I expected protests and some street fighting, but not the breaching of the Capitol. The proximate cause was Trump’s rally speech preceding the attack that primed the crowd’s anger with just enough linguistic ambiguity, or so he thinks, to avoid legal liability. But make no mistake, he is responsible. He has fomented civil unrest and slyly encouraged far-right elements to act violently throughout his four years in office.

 

Would you describe the violence on Wednesday as insurrection?

Sinnar: The protesters who flocked to Washington, D.C., are a mix of unaffiliated Trump supporters and members of far-right militant groups, like the Proud Boys, a self-described “Western chauvinist” group, and the Oath Keepers, a 25,000-member paramilitary organization whose ranks include many military veterans and law enforcement officials.

An insurrection is a violent rebellion against the government. Yesterday’s political violence certainly sought to subvert democratic governance, but it came at the behest of the president, who has pushed demonstrably false claims of voting fraud in an attempt to overturn the election. Trump’s message to the Proud Boys during the fall presidential debates – to “stand back and stand by” – authorized the kind of violence we saw yesterday. His response after it occurred – “these are the things and events that happen when a sacred landslide election victory” is “stripped away from great patriots” – further legitimized it. So this violence isn’t unconnected to the state; it’s been licensed by the president.

 

What do people need to understand about the people and likely motivations behind Wednesday’s events?

Fukuyama: The one thing to say about motives is that many Trump supporters genuinely believe that Trump won a massive landslide and that the election was stolen from him by massive fraud. If you believe that, you would be angry and violent as well. Our problem is that we are living in parallel information universes.

Diamond: The hardliners who broke into Congress are similar to the ones who marched into the Michigan State Capitol in May and later protested the governor. Their views have been distorted by years of disinformation, fed and encouraged by some opportunistic politicians, and drenched in insular networks that become increasingly extreme and cut off from true information and rational dialogue. They have come to see this as a battle of good and evil. They are not going to be reached by liberal professors or Congress members.

Willer: This insurrection follows more than a decade of increased right-wing street protests and riots since the emergence of the Tea Party in early 2009. While the right-wing groups we’ve seen over the last decade vary in a number of ways, there are common threads: claims of social and political disenfranchisement, anger at Democrats, online organizing, conspiracy theorizing, and primarily white participants.

 

The president called his supporters to the Capitol to protest his loss of a free and fair election. Is there any legal liability for the president for what happened on Wednesday? Is speech that incites violence protected speech?

Sklansky: Trump’s statements in the weeks, days and hours leading up to Wednesday’s storming of the Capitol – culminating with statements like “They’re not going to take this White House,” “We will never concede,” “You don’t concede there’s theft involved” – were like throwing matches onto a gasoline spill. Not only did the president egg the rioters on, he made clear on Twitter afterward that he was on their side – calling them “great patriots,” excusing their lawlessness and urging them to “remember this day forever.”

But the First Amendment protects even wildly irresponsible speech unless it is calculated to produce imminent lawlessness. Incitement needs to be pretty explicit and direct to satisfy that test. Winks and nods aren’t enough. Neither are statements of support after the fact. So the criminal liability of President Trump for Wednesday’s riot isn’t clear.

 

So the president’s calls to his supporters to fight a fair election may not be prosecutable. Are they impeachable?

Sklansky: There is a strong and straightforward argument for treating Trump’s words and conduct over the past several weeks, and especially on Wednesday, as grounds for impeachment. The standard for impeachment is “high crimes and misdemeanors,” which is a term meaning, essentially, abuse of power. And it is hard to think of a clearer violation of office, or a more dangerous abdication of duty, than refusing to acknowledge the result of an election voting you out of office, encouraging your supporters to prevent the lawful transfer of power and congratulating them for their violent efforts to do just that.

 

Can the protesters who turned violent be prosecuted? If so, under what charges?

Sklansky: They absolutely can be prosecuted. It’s a felony to enter the floor of either House of Congress by force and violence. It’s a felony to assault a federal official, like an officer of the Capitol Police. It’s a felony to intimidate, impede, or interfere with federal officials, like members of Congress, engaged in their lawful duties, like the counting of electoral votes. And it’s a felony to conspire to seize federal property by force, or to conspire to use force to obstruct the carrying out of any federal law.

Cain: The Constitution and the Electoral Count Act process is pretty clear. They are in violation of the rule of law and democracy. The violent ones should be punished accordingly.

 

Are there any parallels between what happened Wednesday and to other events in history and in other countries?

Stedman: This is reminiscent to me of several elections I studied in Africa in the last 10 years, including Cote D’Ivoire, and Kenya, where an incumbent lost an election, cried electoral fraud and mobilized violence to overturn the election and stay in power. And lots of people got hurt.

Those countries ended up in civil war. We are not there yet but this could still play out in escalatory ways.

Cain: Pretty clearly, Trump was mimicking Putin and other authoritarians in his disdain for democratic processes. Aside from all the obvious parallels with third world country coups, the attempt to bully Congress into not certifying the election reminds me of the Republican Brooks Brother riots around the Florida recount in 2000.

Ablavsky: Clearly, what happened yesterday is pretty extraordinary, especially in recent American history, and many people have said how they felt that it seemed like a foreign country. But if you look at U.S. history broadly, you see quite a few “rebellions” in which armed groups proclaimed themselves the true and legitimate source of governance – “self-created” bodies, as their opponents denounced them. Early American history is rife with such revolts: events like Shays’ Rebellion and the Whiskey Rebellion of the 1790s, or the Dorr Rebellion of the 1840s. And, of course, the most violent and widespread rebellion of all, Southern secession. In that sense, perhaps, it was appropriate that many of the invaders were carrying Confederate flags.

But I actually think one of the best analogies to yesterday’s events is something that I taught my students about recently: the Wilmington Massacre or Coup of 1898. That year, Wilmington, North Carolina duly elected a Fusionist government of both Black and whites. But white supremacists deemed that new government illegitimate, denouncing what they called “Negro Rule.” They violently overthrew the government, killed as many as 60 people, almost all Black, and forced the local government to resign, installing their chosen candidates in their place.

Fortunately, unlike in Wilmington, yesterday’s coup attempt does not seem to have succeeded. But it does demonstrate a similar insistence on the right to overthrow a duly elected government based on a self-appointed group’s faith in their own exclusive legitimacy.

 

The protesters said they occupied the Capitol to uphold American democracy. What would you say to these people? Can they be convinced otherwise?

Diamond: I don’t think there is anything that a Stanford professor can say to people who would forcibly break into the Capitol building while it is deliberating on certifying a presidential election. These people broke the law and committed a grave offense at constitutional democracy. These people have to be held accountable. These actions have to be prosecuted.

Previous extremist groups have been dismantled or contained by legitimate law enforcement and judicial efforts. It not only diminishes their operating ability, it sends a broad societal signal that their actions are morally wrong and illegitimate. The key messages have to come from the political leaders who have encouraged and incited them, but that is not going to come from Donald Trump, who, even while asking them to go home, has expressed his love and empathy for them.

Fukuyama: I don’t think you can convince that crowd. I actually believe that Wednesday’s events could break the Trump spell. A lot of Republicans have stood up and said they support the Constitution and not Trump, unlike what they did during the impeachment. McConnell gave a great speech defending the integrity of the election this morning [Wednesday, Jan. 6].

 

How can political norms and democratic values be reaffirmed during a time of crisis? What would you say to people who might feel helpless or at a loss as to what unfolded?

Diamond: We need to rally in defense of our constitution across party lines. The key imperative now is for the growing circle of Republicans who are disgusted by these actions to come forward loudly and denounce this. Senator Mitt Romney has been particularly eloquent in this regard, but the circle has been growing. It looks like the [vice president], the national security advisor and the acting attorney general are all behaving in responsible ways now. Anything they do to contain this damage and denounce this insurrection should be embraced across party lines.

Obviously people in Washington, D.C., should stay off the streets and not try to battle these extremist protesters. There will be another time for peaceful pro-democracy demonstrations.

Stedman: A famous political scientist, Adam Przeworski, once wrote that democracy is a system where parties lose elections. For elections to be legitimate parties have to have confidence in the professionals who carry out the elections, and there must be rule of law to determine whether electoral grievances are warranted and need to be redressed. If elections are conducted with integrity and there is rule of law, there will be winners and losers, and losers are obligated to honor the results, however much they might abhor them.

Cain: Our Democracy is holding up. That is the good news. The bad news is that the anger and tensions will not go away soon.