Biden says democracy is in peril. Did he move fast enough to prevent another Jan. 6?
WASHINGTON – President Joe Biden is kicking off the campaign year with dark warnings that democracy is in peril with Donald Trump eyeing a second term.
But has Biden done enough to prevent another Jan. 6?
Biden has given several speeches denouncing the attack on the U.S. Capitol by a mob of Trump supporters trying to halt the certification of the 2020 election that Trump lost to Biden. His Justice Department has brought charges against hundreds of rioters.
But questions remain about whether the Justice Department took too long to charge the Jan. 6 conspirators and whether Attorney General Merrick Garland was too timid in his pursuit of Trump. Biden himself is also facing criticism in some quarters that he hasn’t spoken forcefully enough to condemn the attack and those involved.
The delay in bringing charges against Trump could become “very consequential for our democracy” because the trial is scheduled during the campaign season, said Michael Waldman, CEO of the Brennan Center for Justice at New York University.
“The failure to charge Trump in a timely manner means that his trial now is pressing into the primary and election season, with all the complexity that brings,” said Waldman, a constitutional lawyer and a 2021 member of the Presidential Commission on the Supreme Court of the United States. “It should not have required the January 6th committee and the facts it uncovered to prod the Justice Department to act.”
Michael Fanone, a retired police officer who defended the Capitol on Jan. 6, said he has been disappointed in the administration's response to the attack.
“Where is the outrage on behalf of the current administration?” Fanone said Friday during an appearance on MSNBC’s Morning Joe. “Joe Biden has given some fiery speeches with regards to MAGA and its effort to overturn a free and fair election. But that’s something that this country needs to hear every single day – specifically younger people.”
Biden, hobbled by low approval ratings, has ramped up his criticism of Trump in recent weeks, saying the former president’s description of his political opponents as “vermin” and his statements that migrants are “poisoning the blood of the country” echo the language from Nazi Germany. But Biden’s attacks on Trump have mostly come at political rallies where the public at large would not hear them.
Not anymore.
In a speech Friday near Valley Forge, Pennsylvania, Biden cast the upcoming election as a fight for democracy itself and characterized Trump as a threat to the country’s founding principles. The speech, originally scheduled for Saturday but moved up a day because of the threat of bad weather, was timed to mark the third anniversary of the Jan. 6 attacks.
Biden is planning to give a similar speech on Monday at an African-American church in Charleston, South Carolina, that was the target of a racially inspired mass shooting in 2015.
For his part, Garland told reporters Friday that U.S. Attorney Matthew Graves and Justice Department special counsel Jack Smith are following longstanding norms to ensure their independence and the integrity of the department's investigation.
“The Justice Department will hold all Jan. 6 perpetrators at any level accountable under the law, whether they were present that day or were otherwise criminally responsible for the assault on our democracy,” Garland said. “We are following the facts and the law wherever they lead. We are enforcing the law without fear or favor. We are honoring our obligation to protect the civil rights and civil liberties of everyone in our country. We are upholding the rule of law and we are protecting the American people.”
Garland typically declines comment on the continuing investigation and took no questions.
'Officers were assaulted on a scale we have never seen': prosecutor
The riot on Jan. 6, 2021, was the worst attack on the Capitol since the War of 1812. The attack forced the House and Senate – including former Vice President Mike Pence – to flee and temporarily halted the counting on Electoral College votes certifying Biden’s victory. About 140 police officers were injured in fighting around the building. One rioter was shot to death outside the House chamber. The siege caused about $2.9 million damage.
“The attack is unlike anything we’ve ever seen,” Graves, the federal prosecutor for the District of Columbia, told reporters Thursday. “Members of Congress and their staff were forced to flee and those who could not flee had to hide. Officers were assaulted on a scale we have never seen and many of those officers continue to suffer from the injuries they sustained that day.”
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More than 1,250 defendants have been charged in the attack and more than 890 have pleaded guilty or been convicted at trial, Garland said.
Leaders of two groups ? four of the Proud Boys and two of the Oath Keepers ? were convicted of the most serious charge of seditious conspiracy in the attack. Proud Boys leader Enrique Tarrio received the longest prison sentence yet at 22 years.
About 723 defendants had been sentenced by Dec. 6, including 454 who were imprisoned, the department said. About 444 defendants were charged with assaulting or impeding police or staffers, including about 120 individuals charged with using a deadly or dangerous weapon, the department said.
Prosecutions required identifying not just the defendants but their specific wrongdoing, Graves said. Investigators are still trying to identify about 80 individuals who assaulted police officers, he said. The statute of limitations for the crimes will expire Jan. 5, 2026, he said.
A year after the attack Graves estimated that 2,000 people were in a restricted area around the Capitol, meaning hundreds more people who haven't yet been identified could be charged in the attack.
“Much work has been done to hold members of the mob responsible for the crimes they committed,” Graves said. “The prosecutions have necessarily focused on the actions of the individuals charged, not the collective harm done by the thousands of people who were simultaneously committing crimes that day.”
Protecting rights of victims, witnesses and defendants is important, Graves said. The process includes the most robust collection and sharing of evidence in history, showcasing the government’s commitment to fairness and integrity, he said.
“This process is arduous, painstaking and thorough,” Graves said.
However, legal experts say part of the delay has been due to defendants themselves, including Trump, who has sought to slow down criminal trials until after the election.
"Trump has only one real litigation strategy in the four criminal prosecutions he faces: delay," said Joyce White Vance, the former U.S. Attorney for the Northern District of Alabama and now a professor at the University of Alabama School of Law. "At this point, delays are not about DOJ or state prosecutors moving slowly. Trump is entitled to file motions and even to appeal some denials ahead of trial. The courts are responsible for ensuring issues are resolved promptly so the American people can get answers before they vote."
Legal experts said the Justice Department special counsel moved swiftly after his appointment in November 2022 to charge Trump June 8 for mishandling classified documents and Aug. 1 for election interference. But questions continue to swirl about why Garland took so long to appoint Smith in the first place.
"Jack Smith's extraordinarily fast-paced and aggressive investigation of these matters calls into question inaction by the Justice Department before his appointment," said Renato Mariotti, a former federal prosecutor now practicing at Bryan Cave Leighton Paisner.
Mariotti stressed that no one outside of Garland's inner circle knows what was happening behind the scenes during the nearly two years between Jan. 6 and Smith's appointment. Perhaps significant groundwork was being laid.
"Historians, for decades to come, will examine why it appears there was no investigation into matters by the Justice Department" earlier in the Biden administration, Mariotti said.
Gene Rossi, a former federal prosecutor who represented one of the Jan. 6 defendants, said he believes prosecutors have moved at a reasonable pace given the amount of material that must reviewed before and during the trials. In his case, for instance, the Justice Department provided more than 200 days' worth of video evidence from various cameras rolling on that day.
"They're going at a fast but moderate pace because there's so much discovery," Rossi said. "It's hard to identify all the individuals who allegedly committed acts against police officers or participated. It takes time."
Fake electors key to Trump's strategy to overturn 2020 election
A key part of Trump’s strategy to overturn the 2020 election was to swap Electoral College votes in states that Biden won to support him. Two lawyers advising Trump, John Eastman and Kenneth Chesebro, developed the plan to recruit Republican electors in seven tightly contested states who met and sent documents to Congress supporting Trump despite Biden winning the states.
If fake electors created enough confusion about a state’s results, Eastman argued Pence single-handedly could have thrown the election to the House, where GOP lawmakers could potentially have kept Trump as president because Republicans controlled a majority of state delegations.
But Pence refused to participate in the scheme. That is why rioters set up a gallows outside the Capitol and chanted “hang Mike Pence” as they rampaged through the building.
Congress overhauled the Electoral Count Act to clarify how electors are challenged and counted. The compromise raised the threshold to challenge a state’s electors to 20% of the House and Senate, rather than the previous one lawmaker from each chamber.
The legislation explicitly stated the vice president’s role in overseeing the counting of Electoral College votes is ceremonial. The legislation also required documents of electors submitted to Congress and the National Archives must bear the state seal and contain a security feature verifying its authenticity.
Eastman, Chesebro charged in Georgia, but not federally
Eastman and Chesebro were charged with Trump in Georgia as part of an election racketeering conspiracy. Eastman and Trump have pleaded not guilty and a trial has not been scheduled. Chesebro pleaded guilty in October to a felony charge of conspiracy to commit filing false documents.
But neither Eastman nor Chesebro has been charged in the federal case against Trump for alleged election interference. That case is set for trial March 4, but preparations have been suspended while Trump appeals pretrial issues.
Georgia, Michigan and Nevada have each charged fake electors, but only Georgia has indicted Trump.
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Will Biden's warnings go unheeded?
Recent polling shows the challenge Biden will face in trying to convince many Americans that Trump is a threat to democracy.
An overwhelming 83% of those surveyed in a new USA TODAY/Suffolk University Poll said they were worried about democracy, but they strongly disagreed upon who was the biggest threat. Forty percent (mostly Republicans) said Democrats were chiefly responsible for the threat; another 40% (mostly Democrats) said Republicans were.
A poll last month from The Associated Press-NORC Center for Public Affairs Research yielded similar results. Some 62% of adults surveyed said democracy in the U.S. could be at risk depending on who wins next fall, but they disagreed over who poses the threat. And independents are split ? 54% of independents said a second Trump term would negatively affect U.S. democracy vs. 56% who believe democracy would be weakened by another Biden win.
What’s more, two-thirds (67%) of those supporting Trump said in the USA TODAY/ Suffolk University Poll said they don’t believe Biden was legitimately elected in 2020, a debunked assertion that Trump has continued to trumpet at rallies and on social media.
William Bike, a political commentator and communications expert, said Biden’s target audience for his speeches on democracy’s fate isn’t MAGA voters, whose opinion he’s never going to change, or other votes who already have strong opinions about the upcoming race. Biden is instead trying to reach voters who up until now haven’t been closely paying attention to the election, he said.
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“There’s a lot of people who just go along doing their business every day and don’t really start paying attention to the presidential race until you get closer to it,” said Bike, author of a how-to guide called “Winning Political Campaigns.” “I think that’s who Biden is trying to reach.”
For Biden, characterizing the election in such stark terms also comes with political risks. He faced backlash from Republicans and some political strategists when he warned that equality and democracy are under assault in a prime-time address in Philadelphia ahead of the 2022 midterm elections. Republicans accused him of vilifying hard-working Americans, while some analysts questioned his timing and tone.
Bike, however, said Biden’s stark warnings make sense given the country’s already divisive political climate.
“We are in a different era right now,” he said. “We’re in an era of extremity. We’re in an era of highly partisanship. So, I think Biden’s strategy is to motivate Democrats to come to out more, and I think that’s what he’s trying to do. He’s trying to appeal to the undecided or the people who just worry about other issues.”
Bike predicted there’s little chance that Biden’s stark tone could backfire and cause some voters to stay home.
"I don’t think this will be a stay-at-home election,” he said. “With both sides raising the issue, I think that’s going to be something that drives turnout."
Michael Collins covers the White House, Bart Jansen covers the Justice Department and John Fritze covers the Supreme Court.
This article originally appeared on USA TODAY: Jan. 6 anniversary: What has Biden done to prevent another one?
