The January 6 Project
The Search for Accountability: A Guide to Lawfare’s Jan. 6 Project
This page was last updated on Sept. 30, 2022.
The story of Jan. 6’s aftermath—and all of Lawfare’s coverage of it—in one place.
The following is an interactive table of contents:
The slate of hearings convened by the Jan. 6 committee was the television event of summer 2022: a dramatic series that vividly reminded viewers of the chaos and violence of the attack on the Capitol. This fall, the committee faces the task of wrapping up its public hearings and compiling its work into a final report before the end of the 117th Congress. Along with the Department of Justice’s criminal investigation into the insurrection, the committee’s work has received blockbuster media coverage as it continues to uncover new information about the attack.
But the investigations by the committee and the Justice Department are far from the only efforts to hold to account those who bear responsibility for the insurrection. There’s been an impeachment, multiple separate congressional investigations, and a swarm of civil lawsuits.
These many different threads can be difficult to untangle. That’s why we’re providing a detailed overview of Lawfare’s coverage of the various ways in which the government, individuals, and entities have responded to Jan. 6. We’ve been writing and podcasting about the insurrection since the day it happened and have closely followed the twists and turns as the story of Jan. 6 continues to unfold. Here, you can refresh your memory on aspects of the insurrection and the investigations into it that you may have forgotten. We’ll be updating this page regularly to include new information as Lawfare continues to cover the story.
The Second Impeachment of Donald Trump
In the days after the Jan. 6 Capitol attack, people in and out of government called for Trump to be stripped of the powers and duties of the presidency, either by impeachment or by invocation of the 25th Amendment. Amid these calls, some argued that pragmatic considerations should guide the decision on whether to impeach the president a second time. Others argued that while the move would be appropriate, it would draw the Senate’s attention away from confirming the new president’s national security team. And given that only a few days remained before President Joe Biden’s inauguration, scholars debated whether Trump, as a former president, was even eligible to be impeached and convicted.
On Jan. 13, 2021, for the second time in his presidency, Trump was impeached by the House of Representatives, this time for incitement to insurrection. Following the House vote, nine impeachment managers filed a brief arguing that Trump was responsible for the Capitol attack and called on the 45th president to testify in his Senate trial. Trump’s legal team submitted response briefs disputing the allegations that he had incited the riot and calling the trial unconstitutional.
On the eve of trial, it was still unclear whether the Senate would consider the House managers’ charge narrowly or in the broader context of Trump’s aberrant presidency. Ultimately, the trial lasted for five days, concluding on Feb. 13, 2021.
Lawfare dedicated an episode of The Aftermath, our narrative podcast series on the response to the Jan. 6 insurrection, to exploring the second impeachment—the politics, the legal complexities, and the story it told.
Early reactions to Jan. 6 also came in the form of civil lawsuits against Donald Trump and others. A group of plaintiffs that included members of Congress brought suit against Trump, Rudy Giuliani, Rep. Mo Brooks (R-Ala.), and the Oath Keepers in February 2021. Litigation in the case, Thompson v. Trump, continued for months. Two key issues were whether a suit against Trump was barred by presidential immunity, which prohibits civil actions against sitting presidents, and whether the defendants’ actions constituted First Amendment-protected activity. Both issues were raised at oral argument on Jan. 10, 2022. In a key ruling out of the U.S. District Court for the District of Columbia on Feb. 18, 2022, the suit survived Trump’s motion to dismiss. Trump appealed the decision to the U.S. Court of Appeals for the D.C. Circuit. Litigation is ongoing.
In a separate civil action, a group of Capitol Police officers sued Trump, Roger Stone, the Proud Boys, and several other Trump allies and organizations, claiming that they conspired to violently prevent the transition of power and that they committed “bias-motivated acts of terrorism.” That litigation is also ongoing.
Just days after Jan. 6, Congress began to respond. As committees in the House and Senate launched a number of smaller, separate investigations focusing on discrete issues (for more on this, see the Congressional Investigations and Responses section below), there was talk of a broader investigation, which raised questions of just what that would look like. In May 2021, the House of Representatives passed a bill to create a 9/11-style commission, with the support of all Democrats and 35 Republicans, but it failed to pass in the Senate.
After the idea for a national commission collapsed, the House of Representatives in July 2021 created the Select Committee to Investigate the January 6th Attack on the U.S. Capitol. But the partisan divide undergirding the creation of the committee engendered questions early on about what the committee could achieve.
Legal Challenges and the Jan. 6 Select Committee
The select committee held its first hearing at the end of July 2021, during which four law enforcement officers who had protected the Capitol on Jan. 6 testified. But it stayed relatively quiet—at least publicly—for months after that first hearing, leading many to wonder what was going on behind the scenes.
It soon became clear that the committee’s silence did not signal inaction. Its efforts to collect information for its investigation generated civil lawsuits challenging the committee’s authority and pushing back against its activities. (Relatedly, in light of reports that the select committee might attempt to secure testimony from fellow members of Congress, Lawfare analyzed whether congressional committees can subpoena members of Congress.) Former President Trump filed suit in Trump v. Thompson to challenge the committee’s subpoena to the National Archives and Records Administration (NARA), arguing that the documents the committee sought were shielded by executive privilege, which allows the president to withhold from disclosure certain kinds of documents. Trump lost in the D.C. District Court and immediately appealed. But he lost again at the D.C. Circuit, and was denied a key motion by the Supreme Court. Soon after, NARA began producing documents to the committee.
Trump was not the only person to challenge the select committee’s subpoena power. Several of his allies, including former advisers Steve Bannon and Peter Navarro, former Chief of Staff Mark Meadows, former Deputy Chief of Staff for Communications Dan Scavino, and former lawyer John Eastman, also refused to comply with the select committee’s subpoenas—leading to even more civil lawsuits and, in some cases, to criminal referrals.
Bannon was the first to expressly defy the Jan. 6 committee’s subpoena for documents and testimony, arguing that the information was subject to executive and other privileges and therefore could not be disclosed. This first challenge to the committee’s authority raised immediate questions about whether and how the committee could enforce its subpoenas. The answer was not straightforward, particularly after a key question—whether executive privilege applied—was complicated further by two developments: Biden’s decision to waive executive privilege and Trump’s lawsuit (Trump v. Thompson, discussed above) claiming that he had the authority to uphold executive privilege over information originating from his own presidency. The committee ultimately chose to seek enforcement by preparing a contempt report outlining the committee’s efforts and Bannon’s refusal, which formed the basis of the House’s referral of Bannon to the U.S. Attorney’s Office for the District of Columbia for criminal prosecution. Several weeks passed without word from the Justice Department, raising concerns that it would decline to prosecute, which would have undermined the committee’s work by failing to enforce its subpoenas. Lawfare analysts, though, argued that the delay was reasonable given the complexity of the underlying legal issues.
On Nov. 12, Bannon was indicted. His legal defense again relied on his claim that he could not produce the materials the committee sought because they were covered by executive privilege. He further argued that he could not be held in contempt because even if executive privilege did not apply, he had relied on lawyers who had advised him to the contrary. But Bannon did not prevail: On July 22, 2022, he was convicted of two counts of contempt of Congress related to his stonewalling of the Jan. 6 select committee.
After initially engaging in negotiations with the committee, Trump’s former chief of staff, Mark Meadows, suddenly ceased his cooperation, raising questions about the pace at which the committee should seek Meadows’s testimony. On Dec. 14, 2021, the House voted to refer Meadows to the Justice Department on the grounds that he was in contempt of Congress.
Trump adviser Peter Navarro and Deputy Chief of Staff for Communications Dan Scavino had also refused to respond to subpoenas, and in March 2022, the House voted to refer them to the Justice Department for contempt prosecutions. Several months later, on June 3, the department informed the committee that it would indict Navarro but would not bring charges against Scavino or Meadows, and provided its legal rationale to explain the divergent outcomes.
The House’s referrals to the Justice Department were not the only legal proceedings to result from individuals’ refusals to comply with the committee’s subpoenas: Both Mark Meadows and John Eastman brought suits against the committee in federal court.
Meadows filed suit on Dec. 8, 2021, asking the court to invalidate certain subpoenas from the select committee. On July 18, after the presiding federal judge in Meadows’s case solicited the Justice Department’s view on Meadows’s entitlement to executive privilege or testimonial immunity, the department released a Statement of Interest in which it said that Meadows retains a form of lessened immunity—and that this immunity can be overcome if legislators sufficiently demonstrate their need for the information and their inability to get it elsewhere.
Eastman was personally subpoenaed in November 2021 but declined to produce documents and asserted his Fifth Amendment rights. The committee then subpoenaed his employer, which was a custodian of Eastman’s communications. In response, Eastman filed suit in January 2022, seeking a preliminary injunction to prevent his employer from complying with the committee’s subpoena, arguing that the materials were privileged. The committee argued in response that privilege would not apply given evidence that “Trump and others may have engaged in criminal and/or fraudulent acts.” A court later agreed, holding that Trump had likely been using Eastman’s legal services in furtherance of a crime and thus the crime-fraud exception defeated any claims of privilege.
The discussion of Trump’s potential crimes, though occurring in the narrow context of adjudicating privilege claims over subpoenaed documents, engendered debate about whether the Justice Department would be compelled to investigate or prosecute Trump on the basis of the evidence the committee had offered and the judge’s findings.
The Select Committee’s Summer 2022 Hearings
Nearly a year passed between the committee’s first public hearing and the next one, which was held on June 9, 2022. In a series of eight hearings spanning June and July 2022, the committee delivered explosive new information arising from documents and depositions with White House staff and other Trump advisers:
- The first of these hearings centered on the Capitol riot itself, which the committee described as the result of “a sprawling, multi-step conspiracy aimed at overturning the presidential election.”
- The second hearing focused on Trump’s efforts, from the eve of the 2020 election through the months that followed, to overturn an election that he knew he lost.
- The third hearing, held on June 16, concentrated on Trump’s and his lawyer John Eastman’s attempts to pressure Vice President Pence to overturn the election by refusing to certify the 2020 election; the hearing featured testimony from the vice president’s advisers.
- In the fourth hearing, the committee turned its attention to Trump’s efforts to pressure state election officials to invalidate election results in their states.
- The fifth hearing focused on Trump’s campaign to initiate Justice Department action on his claims of election fraud, including through the replacement of noncompliant officials.
- In a blockbuster sixth hearing, the community heard testimony from Cassidy Hutchinson, former aide to White House Chief of Staff Mark Meadows, who detailed the actions of Trump and his White House staff on Jan. 6 itself—including Trump’s plan to go to the Capitol after his speech at the Ellipse and his knowledge that some members of the crowd were armed.
- The seventh hearing pieced together a Dec. 18 showdown, during which Trump’s external advisers encouraged him to direct the secretary of defense to seize voting machines while White House staff pushed back. It also provided more evidence on the role of extremist groups in planning the assault on the Capitol.
- And in the eighth hearing, the committee described in detail what Trump had been doing—and not doing—during the hours in which his supporters stormed the Capitol.
Collectively, the hearings provided evidence to support what the committee called a “seven-part plan overseen by President Donald Trump to overturn the 2020 election.” Lawfare organized all of the information presented in the June and July hearings by category to show how the committee defended each of its seven points.
Legal experts debated whether the committee’s evidence supported claims that Trump could be held criminally liable for the attack on the Capitol—and on this point, some even changed their minds as testimony exposed new information about Trump’s conduct in the days surrounding the insurrection. Others reflected on whether evidence revealed by the committee suggests that Trump lied to Congress during his second impeachment proceedings.
Evaluating the Committee
Congressional experts noted in Lawfare that the select committee’s work has been characterized, among other things, by its innovative use of public hearings to communicate with the public. They argued that Congress can improve the effectiveness of future hearings by adopting some of its strategies but also cautioned that the committee’s unique composition and purpose means that the model has some limits.
Analysts also considered how the select committee defined its mission in finding accountability for Jan. 6, especially vis-a-vis the criminal investigations the Justice Department was conducting in parallel.
Other Congressional Investigations and Responses
Besides the second impeachment and the select committee—which were both criticized as Democrat-led efforts to attack Trump for partisan gain—what else has Congress done in response to Jan. 6? Though lesser known, there have been a lot of important accomplishments during a brief period in which Democrats and Republicans worked together, which Lawfare explored in the fourth episode of our narrative podcast series, The Aftermath.
Just days after the attack, both the House and the Senate conducted bipartisan investigations and ethics inquiries in an attempt to understand what had happened. On Jan. 15, the House of Representatives commissioned a review from Gen. Russel Honoré to investigate the security failures of Jan. 6 and make recommendations to address continuing security vulnerabilities of the Capitol. Honoré’s report was released in March 2021.
Both houses of Congress also held public hearings in the weeks after the attack, focusing on the physical security of the Capitol complex and the failure to collect and disseminate adequate intelligence in preparation for the violent protests that occurred on Jan. 6. In the Senate, most of the investigation was led by a joint effort between the Homeland Security and Governmental Affairs Committee and the Rules and Administration Committee. The committees conducted two joint hearings, in which they questioned multiple security officials, including Robert Contee III, acting chief of the D.C. Metropolitan Police Department; Steven Sund, former chief of Capitol Police; Michael Stenger, former Senate sergeant-at-arms; Jill Sanborn, assistant director of the FBI’s counterterrorism division; and others.
On March 2, 2021, the Senate Judiciary Committee also heard testimony from FBI Director Christopher Wray to examine the FBI’s actions in the weeks before the attack and the broader threat of domestic terrorism. In this hearing—despite the FBI’s obvious institutional failures—senators neglected to press Wray about his claims that the FBI had “performed admirably” in monitoring and combatting domestic terrorism in the lead-up to Jan. 6. In the House, the investigation was spread among more committees, including the House Administration Committee, the Oversight Committee, and the Appropriations Committee.
The early hearings revealed failures on the part of multiple federal agencies and individuals to adequately prepare for and address the Jan. 6 attack on the Capitol. Most notably, there were major failures in intelligence collection and dissemination, as well as institutional incompetencies that prevented the deployment of the National Guard to the besieged U.S. Capitol in a timely and effective manner.
Congress’s work continued for many months to come. In April 2021, the Committee on House Administration held an oversight hearing relating to the U.S. Capitol Police’s (USCP’s) preparations for and response to the Jan. 6 attack. In May 2021, the Senate Appropriations Committee held a hearing on domestic violent extremism, which would later also be the subject of a national strategy promulgated by the Biden administration in June 2021 and the topic of a Senate Judiciary Committee hearing in January 2022. (Lawfare analysts also discussed how domestic terrorism was being driven by a continuing threat of white extremism.)
The first report to come out of Congress about the Jan. 6 attack on the Capitol was issued by the Senate Rules and Administration and the Homeland Security and Governmental Affairs committees in June 2021—six months after the attack. The report detailed the “critical breakdowns” in intelligence collection and sharing between federal agencies; “security, planning, and response failures” of the USCP and the Capitol Police Board; and the Department of Defense’s apparent hesitation to deploy the National Guard. Legal and congressional experts observed that while the report thoroughly outlined what went wrong before and on Jan. 6, it did not discuss in depth why these failures occurred. (Lawfare contributors, however, evaluated whether Jan. 6 represented an intelligence failure, a police failure, or both, and also considered how pervasive problems in policing may have played a role.)
In October 2021, the Senate Judiciary Committee released a “terrifying” staff report detailing former President Trump’s efforts to pressure the Justice Department to aid him in his attempt to overturn the election.
The congressional investigations resulted in more than just hearings and reports, though. Congress, the USCP, and the Justice Department took actions to address the problems that the investigations had uncovered and to implement their policy recommendations. For example, the USCP developed a new operational, standardized plan to address large-scale events—including protests—at the Capitol. Congress passed emergency funding legislation to bolster USCP staffing, training, and equipment requirements. And the Justice Department is reportedly working to improve intelligence collection and sharing to better confront threats of domestic terrorism.
Congress also passed legislation in response to Jan. 6. To address institutional incompetencies that prevented the timely deployment of the National Guard to the Capitol on Jan. 6, Congress passed legislation to allow for the USCP chief to request assistance from the National Guard in the event of an emergency without the prior approval of the Capitol Police Board. And in an effort to resolve the underlying controversy over certifying Biden’s election, Congress began working in earnest to reform the Electoral Count Act, which sets forth the process by which popular votes for president are translated into electoral votes. A bipartisan group of senators put forward a long-negotiated legislative proposal to implement changes to the law in the summer of 2022. As of September 2022, it appears a version of that proposal may soon be heading for a vote.
Several other government entities conducted their own investigations into the Jan. 6 attack. On Nov. 16, 2021, the Department of Defense inspector general released a report examining that department’s preparation and response, ultimately concluding that it had acted appropriately and, contrary to some critics’ views, had not improperly delayed deploying the National Guard.
The Department of Homeland Security’s inspector general conducted an investigation into its intelligence divisions’ failure to share information about known violent threats in advance of Jan. 6. The report, which was released on March 4, 2022, found that in some cases, the divisions’ analysts had collected open-source information about threats but had not issued reports; in other cases, they had collected threat information and transmitted it by email to local law enforcement partners in D.C. but had not disseminated them widely.
The USCP inspector general’s office issued six separate reports over the course of its investigation. The first focused on operational planning and intelligence, the second and third on the Civil Disturbance Unit and intelligence, the fourth and fifth on the Containment Emergency Response Team and First Responders Unit, and the sixth on the Hazardous Incident Response Division and Canine Unit.
And the Government Accountability Office issued a report in March 2022 outlining its own review of the USCP’s preparation and performance and recommending changes to prevent future attacks.
Criminal Investigations and Prosecutions
After the attack on the Capitol, consequences were top of mind—who should be held accountable for what had happened, and how?
The violence and property damage made federal criminal charges against the rioters themselves seem almost inevitable—and many rioters were indeed charged within the first few months of the attack. But as prosecutors got to work investigating, it soon became clear that prosecuting the attack was far from straightforward. How would investigators work through the mountain of digital evidence relating to Jan. 6, including from open-source intelligence? What kinds of charges could be brought against the rioters, given that their conduct ranged from simply standing in a crowd to violently attacking police officers? Could a criminal statute prohibiting obstruction of an official proceeding apply to the rioters, and would judges allow prosecutors to use it on these unprecedented facts? Could some of the rioters’ conduct warrant charges that rose to the level of felony murder or even seditious conspiracy? Or might some of these potential charges be too legally or politically risky? Should others be held criminally responsible for instigating the attack, even if they were not physically present at the Capitol? Can, and should, the Justice Department indict Trump?
Many of the Justice Department’s early prosecutions targeted relatively low-level crimes, including by securing plea deals—a decision that some criticized as resulting in sentences that were too lenient. But by late fall, the hundreds of criminal indictments also included serious felonies, such as conspiracy cases against organized groups. Some of the most serious charges did not come until about a year after the attack, when the Justice Department indicted several defendants on charges of seditious conspiracy. Among those were leaders of the Oath Keepers and the Proud Boys, leading some observers to wonder what impact the prosecutions would have on domestic extremist groups.
As the prosecutions proceeded, new questions arose. Defendants asked for their cases to be moved to new jurisdictions, arguing that D.C. juries would be biased. Judges began handing down sentences, and some raised questions about whether the varying outcomes reflected judges’ political colors.
More broadly, Lawfare contributors debated whether the Justice Department’s strategy and messaging in pursuing criminal cases was meeting the moment, and how observers should evaluate the department’s progress.
But the Justice Department is not the only entity conducting a criminal investigation of Jan. 6. A special grand jury in Fulton County, Georgia, is investigating possible criminal interference in the state’s 2020 elections. In July, it issued subpoenas to several individuals close to Trump—including Rudy Giuliani, John Eastman, Sen. Lindsey Graham (R-S.C.), and former Trump campaign lawyer Jenna Ellis. Giuliani, Graham, and Ellis all raised legal defenses in an effort to resist the subpoenas.
To what extent were government officials—perhaps even Trump—involved in the insurrection? In the aftermath of the riot, many people wondered whether such individuals should be somehow forbidden from running for elected office again.
As it turns out, the 14th Amendment to the U.S. Constitution, which was passed just after the Civil War, contains a provision providing for exactly this kind of disqualification. The process for applying this provision is not straightforward, but analysts believed it was possible. The question was soon brought before the courts as individuals raised challenges to certain candidates’ eligibility to run for office. One of the most prominent of these cases related to Rep. Madison Cawthorn (R-N.C.), whom voters sought to disqualify on the basis of his conduct before, during, and after the Jan. 6 insurrection. (A similar challenge was also brought against Rep. Marjorie Taylor Greene (R-Ga.).) Cawthorn’s lawyers raised several novel legal arguments—as did lawyers representing other candidates who had been challenged elsewhere—and the Fourth Circuit ultimately weighed in, perhaps with implications for Trump. Months later, a court in New Mexico became the first to formally disqualify a government official because of his participation in the Jan. 6 insurrection. But an expert who testified in that trial wrote for Lawfare to explain why the original understanding of the 14th Amendment compelled an interpretation that should encompass many other participants’ conduct and consequently result in additional successful efforts to disqualify them from holding office.
Lawfare contributors also considered presidential disqualification under the 25th Amendment, which provides a mechanism for the Cabinet or Congress to remove a sitting president—either temporarily or indefinitely—from office.
As Congress debated how it should hold the president and the rioters accountable for the events of Jan. 6, social media companies cut ties with Trump. In the following days, Twitter and Facebook suspended his accounts. Other platforms such as Snapchat and Shopify, among others, also banned Trump or his campaign.
These actions prompted a broader debate about content moderation and free speech. Many wondered why it had taken Twitter and Facebook so long to ban Trump from their platforms, given the years of outrage over his misleading and incendiary posts, and whether the bans were really prompted by the specific posts on and around Jan. 6 or by political bias and rising social pressure. Others wondered how these actions would affect content moderation decisions going forward, if at all. Further, the bans raised questions about how social media algorithms function and whether they seek to stoke or limit political polarization; for example, how certain advertisers might see their ads popping up around content they disagree with or feel is antithetical to their brand, such as content in favor of Jan. 6 insurrectionists. Many called for reform and oversight of social media platforms to understand how they operate, including referring the matter to Facebook’s new Oversight Board to address how the company handled the issue of the ban—which Facebook eventually did. Other scholars called for social media companies to develop emergency protocols for state-backed hate and posts seeking to incite violence.
On the law enforcement side, Lawfare contributors examined why agencies such as the FBI did not anticipate the potential for violence on Jan. 6 and how they could have done so—given that much of the planning for the attack took place on Facebook and the more Trump-friendly sites Parler and Gab. In the days directly following the attack, Amazon and other hosting services pulled the Parler app from their stores. Data obtained from Parler memorialized documentary evidence of the insurrection before rioters could delete it—though at first there was debate and confusion about whether the site was hacked or merely scraped for data on specific users.
The process of working toward accountability for Jan. 6 has been difficult, plodding, and in many respects unsatisfying. The wheels are turning slowly and creakily—but they are turning. What the end result might look like remains to be seen, but whatever manifestation it takes, it won’t arrive in a single instance of one particular agency imposing the archetypal form of consequence. Rather, whatever accountability that ultimately comes will represent the collective work of many—sometimes together, sometimes at cross-purposes. For now, the investigations continue. And so will Lawfare’s analysis.