Joanne B. Freeman, the Class of 1954 Professor of History and American Studies at Yale University, is author of "The Field of Blood: Violence in Congress and the Road to Civil War" and a co-host of the podcast "Now & Then."
December 10, 2021 at 12:01 p.m. EST
Nearly a year after the Jan. 6 assault on the U.S. Capitol, with the duly elected president in place, it’s tempting to conclude that the insurgency failed. It didn’t. At least, not yet. Our government is still under attack. The offensive is quieter now but no less menacing, eroding the government from within. The fundamental right to vote is under siege. The regulation of elections is being corrupted. And faith in the electoral process is fading; the “big lie” about Donald Trump’s supposed victory in 2020 has staying power for just that reason. Americans question the role and reliability of the Supreme Court and wonder whether they can trust health and safety institutions like the Centers for Disease Control and Prevention or the Food and Drug Administration — during a pandemic. For too many, the old idea that government is the enemy has a newly magnified appeal.
But the damage goes even deeper. Faith in democracy itself is slipping away. The stunningly muted response to the Jan. 6 attack offers no comfort. More than 700 alleged rioters have been arrested, but their fates have varied; too many complicating factors prevent clear rulings of right and wrong, and sentences have been short and few.
It took a full six months for Congress to launch a formal investigation; five months later, the scope and purpose of the Select Committee to Investigate the January 6th Attack on the United States Capitol remain unclear. Its high-profile subpoenas have been mostly unanswered, resulting in one criminal indictment, that of former Trump strategist Stephen K. Bannon, and on Tuesday the committee announced that it would move to hold former Trump chief of staff Mark Meadows in contempt as well. The former Justice Department official Jeffrey Clark, who played a significant role in Trump’s efforts to overturn the election, agreed to answer his subpoena on Dec. 16, but he apparently plans to assert his Fifth Amendment rights so as not to incriminate himself.
Basic facts about the day’s events and planning remain fuzzy. Journalists have offered a stream of revelations and allegations — the memo from lawyer John Eastman outlining a plan for overturning the presidential election; the report of a Jan. 6 “war room” at the Willard Hotel; claims of dozens of planning sessions fostered by members of Congress — but each bombshell seems to vanish before it explodes.
Here’s the problem, and it’s foreboding: If a line is crossed, and the occasion passes unacknowledged, was there really a line? All these months after the attack, the seemingly bare-minimum response has not happened: There has been no full-throated group statement from the congressional bully pulpit stating that the attack was out of bounds, no strong, clear line in the sand naming the events of Jan. 6 an unforgivable assault on the democratic processes and principles of our government that must never happen again. This astounding omission could prove fatal.
Many Republicans have been doing the precise opposite of acknowledging a crossed line. They deny the attack’s importance (“You would actually think it was a normal tourist visit,” was how Rep. Andrew S. Clyde characterized some of the footage), dismiss the need for an investigation (“Anything that gets us rehashing the 2020 elections,” Sen. John Thune said, is “a day lost”) and stab at the probe’s credibility (“This is a sham committee,” House Minority Leader Kevin McCarthy, who may be the speaker by Jan. 6, 2023, said of the bipartisan House panel). Even moderate Republicans have joined that chorus; on ABC’s “The View” in October, former secretary of state Condoleezza Rice said she agreed with Senate Minority Leader Mitch McConnell that it was “time to move on.”
New metal detectors in the Capitol — one of the few lasting additional protective measures — have met Republican resistance. Right-wing pundits have claimed that the Capitol Police officers who tearfully testified before the select committee this past July were “crisis actors” playing for effect. Some, including Trump himself, have transformed insurgent Ashli Babbitt, killed by law enforcement while trying to climb through a broken window inside the Capitol, into a martyred patriot. In the Senate, Republicans voted down the mere discussion of an investigation.
The message is clear: There’s no reason to get upset. The day’s events were unremarkable, perhaps even praiseworthy. Nothing more need be done.
This is dangerous. The nation suffered a deliberate attempt to violently overturn a free and fair election, with little pushback, an astonishing lapse that invites more of the same. Indeed, if there were Republican members of Congress involved — and despite a recent Rolling Stone report attributed to anonymous sources, there is no clear evidence that there were — they have retained their seats in violation of their oath of office, which requires them to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” The Constitution lays out the presidential electoral process; on Jan. 6, 2021, domestic attackers tried to violate it. Full stop.
American history has ample examples of instances when a line was crossed and there was a firm, public repudiation of the offense. The health of our democracy has depended on it. Consider the caning of abolitionist Sen. Charles Sumner (R-Mass.). In May 1856, Sumner gave a two-day speech denouncing slavery generally and some of his proslavery antagonists in Congress specifically. Two days later, Rep. Preston Brooks (D-S.C.), the kinsman of one of those enslavers, walked up to Sumner, who was seated at his Senate desk franking copies of his speech, and brutally caned him over the head, beating the bloody Sumner to the ground until the cane broke. At a time when sectional strife over slavery was peaking, the attack had a powerful national impact. Southerners sent Brooks fan mail and canes as tributes; Northerners voiced their outrage in mass “indignation meetings.” North and South, Americans viewed the caning as the South beating the North into submission.
The official response was swift. The day after the caning, Congress formed an investigative committee. Although Democrats protested that it would further polarize the nation, the severity of the crime and its deliberate commission on the Senate floor carried the day. Those same factors led to a fiery House debate about the caning and its implications two months later — a debate so explosive that there were four near-duels in its aftermath.
In the end, the committee was divided over how to respond. Brooks resigned his seat in protest and was promptly reelected, only to die within months of a severe throat infection. After three years recovering from health problems caused by the caning, Sumner returned to the Senate and gave an even more savage antislavery speech. And the clash of North and South continued, helping pave the way to civil war.
But the post-Sumner proceedings did have an impact. They powerfully, publicly and explicitly declared that a preplanned assault of a lawmaker on the floor of Congress was out of bounds. They taught Southern congressmen that their Northern colleagues would not back down in the face of such an attack. And equally if not more important, Congress had proved able and willing to defend itself and the democratic process. Lawmakers may not have agreed on a remedy, but they agreed on the severity of the offense.
The simple fact of a formal investigation has power, something Sen. John Parker Hale (N.H.) appreciated as far back as 1850. On April 17 of that year, during debate on what would become the Compromise of 1850 over free and slave states, Sen. Henry Foote (D-Miss.) grievously insulted Sen. Thomas Hart Benton (D-Mo.), who was less bullish than Foote on the spread of slavery. When the outraged Benton lunged toward Foote, Foote grabbed a pistol from his pocket and pointed it at Benton. Mayhem ensued. Some senators rushed for Foote’s gun. Some tried to restrain Benton. Others jumped on desks and chairs to get a good look. Eventually, the chamber calmed and senators went back to work; this was hardly the first such congressional clash, or even the first threatened gunplay. But Hale wanted something more. A formal investigation was essential, he argued, not just for “vindicating the character of the Senate, but to set history right, and inform the public as to what did take place.” The public needed to know what happened, and perhaps more important, they needed to see that Congress had taken the matter in hand. They needed to see the image — ideally, the reality — of Congress as a functioning institution. They needed to see the government holding itself accountable.
Accountability — the belief that political powerholders are responsible for their actions and that blatant violations will be addressed — is the lifeblood of democracy. Without it there can be no trust in government, and without trust, democratic governments have little power.
The framers were well aware of this liability; it’s why they were obsessed with the danger posed by demagogues, who seize power by pandering to the masses and winning their loyalty, toppling the old order in the process. Public accountability was one of many checks and balances the framers built into the Constitution to fend off that danger. It’s one reason the Constitutional Convention rejected the idea of an executive council leading the nation, rather than a single president: In a council, a power-hungry wrongdoer could hide his crimes behind his colleagues. Better to have a single executive who would be restrained by the threat of public exposure and accountability. At least, such was their hope.
In the past, we’ve seen the impact of public exposure of a crossed line, even when it’s slow to come. Sen. Joseph McCarthy (R-Wis.) had been red-baiting the powerful and prominent for years before the televised 1954 hearings investigating alleged communism in the Army. When McCarthy savagely lashed out at a young colleague of the Army’s chief counsel, Joseph Welch, Welch shot back: “Have you no sense of decency, sir?” — and moment later the spectators burst into applause. The line, at last, had been publicly acknowledged, eroding McCarthy’s hold on power in the process. Later that year, he was censured for acts that “tended to bring the Senate into dishonor and disrepute.” Although Welch didn’t single-handedly bring down McCarthy, he did serious damage, showing him for what he was, and wary Republicans backed away.
The Army-McCarthy hearings gave congressional investigations a bad name. By some accounts, the 1973 Watergate hearings redeemed them. Broadcast live for two weeks, the hearings reached millions of American homes daily. Paired with hard-hitting newspaper coverage, they had an impact. Before the hearings, polling showed that 31 percent of Americans considered the Watergate break-in a serious matter. After the hearings, 53 percent shared that view.
The times were different, of course. There was bipartisan support for upholding national institutions and the rule of law; the Senate voted unanimously to create a select committee to investigate Watergate. The mainstream media was suspect to some, but it hadn’t been under siege for years as part of a sustained attack on facts and truth. And baldfaced lies by politicians, when exposed, carried a cost.
Left unexposed, such sins can drift into irrelevance, a desired outcome for some. This was the logic of the lukewarm response to government lapses in security during the burning of Washington in 1814 — the last time the Capitol suffered a mass attack before Jan. 6. The British savaged the city, torching the president’s house (now the White House) and the Capitol. According to one account, a British soldier gloried in the burning of the House while standing on the speaker’s chair.
Once the British took their leave, questions abounded: Why wasn’t the city defended? Who was at fault? After a couple of months of investigation, the committee tasked with answering these questions issued a voluminous report — but placed no blame. It was little more than a “chronicle,” complained Sen. Daniel Webster. It had “done nothing that it was asked to do.” Not long thereafter, the report was tabled and forgotten. Why? As one congressman later noted, “The House could no more discuss than the committee pronounce upon transactions implicating so many marked personages, and such conflicting evidence of occurrences unquestionably disgraceful to the government and the country.” Better to consign the matter to “merciful oblivion” than to implicate men of power.
We face a similar challenge today. Some members of Congress are leery of an investigation and its implications, but their silence comes at great cost. Although accountability won’t single-handedly end our current crisis, its absence virtually guarantees more of the same. With no clear line in the sand, the attack on democracy will continue, unchecked and empowered, with the worst yet to come.