At the 6 January trials

Acourt summons​ arrived in December, alerting me that I had been selected for ‘special jury service’. An accompanying letter explained that the trial would be held at the court for the District of Columbia. It was due to begin on 4 March and was expected to last approximately three months. ‘We understand that three months is a long period of time,’ the letter read, ‘and we are grateful for your service.’ Hundreds of Washington residents had received the same summons. I already knew that 4 March had been set as the start date of Donald Trump’s criminal trial for his efforts to overturn the result of the 2020 election. If everything went according to plan, the trial would finish before the Republican National Convention in July. I was instructed to fill out a questionnaire and prepare to report to the courthouse for further screening in two months’ time.

I stood no chance of being selected as a juror. I had listed my profession as ‘non-fiction writer’ and had already attended one of the hearings in the Trump case. Two months earlier, I had sat in the media section of the courtroom while the judge, Tanya Chutkan, considered whether to impose a gag order barring Trump from making threats, accusations or public attacks on court personnel, attorneys and potential witnesses as long as he remained a criminal defendant. Trump wasn’t in the courtroom that day, though I did spot one of his most vocal allies in Congress, Marjorie Taylor Greene, sitting near the back. Chutkan went through a list of his recent remarks and asked the attorneys whether or not each statement would count as a violation of the order. She began with an example from August 2023, when Trump called the District of Columbia ‘a crime-ridden embarrassment to our nation’. Wouldn’t that risk prejudicing the Washington jury pool against him? What about when he referred to the president as ‘crooked Joe’ or called the federal agency responsible for his prosecution the ‘department of injustice’? Or when he called Jack Smith, the special prosecutor overseeing the case, ‘deranged’ and referred to his staff as ‘thugs’? Or when he suggested that General Mark Milley, the former chairman of the Joint Chiefs of Staff and a potential witness, had committed an act of treason for which, ‘in times gone by, the punishment would have been DEATH!’ ‘I think that we all understand that at some point a defendant’s targeted disparagement of government officials can go from permissible criticism of those officials to encouraging harm against them,’ Chutkan said. ‘“Will no one rid me of this meddlesome priest” comes to mind.’ It wasn’t difficult to imagine one of Trump’s followers reading his posts on social media, she suggested, and deciding to act on them.

Trump’s defence attorney didn’t disagree. But he argued that even if this were the case – as it was on 6 January 2021, when thousands of Trump’s supporters violently stormed the US Capitol after listening to his remarks at a rally on the National Mall – Trump couldn’t be held accountable for the actions of others. ‘You can’t be penalised for First Amendment speech because of something someone else can do in a deranged speech,’ he said. It wasn’t clear whether the ‘deranged speech’ in this scenario was that of the former president, or that of ‘someone else’ who might be inspired by Trump’s words to perform deranged speech acts of their own. This ambiguity revealed a deeper problem at issue in the Trump trial, and in all 1488 cases of those charged with involvement in the Capitol riot. Nearly four years on, the issue of culpability remains unresolved. To Democrats, the answer is obvious: Trump and his inner circle instigated the attack and refused to call back the rioters until it was far too late. Republicans, meanwhile, have sought to shield from prosecution the violent group of protesters who descended on Congress that day, maintaining that they included many patriots and innocent individuals who just happened to be ‘walking through the building’, as the House Speaker, Mike Johnson, put it. Trump recently referred to the riot and the prosecution against him as the ‘6 January Hoax’ and to the arrested rioters as ‘hostages’. His vice-presidential running mate, JD Vance, has described the defendants as ‘political prisoners’. The rioters themselves have been steadily circulating through the district court for the past three years, but the initial wave of outrage dissipated long ago and voters have largely lost interest in the proceedings. At the Capitol itself, all traces of the riot have been erased.

That day in court, Chutkan told the defence attorneys that ‘politics stops at this courtroom door.’ The trial would not ‘yield to the election cycle’, she insisted. For months, the proceedings sputtered along: the gag order was imposed, paused and then reinstated. In December, Chutkan ruled that Trump did not have ‘absolute immunity’ for actions undertaken at the ‘outer perimeter’ of his official responsibilities as president. ‘Whatever immunities a sitting president may enjoy,’ she wrote, ‘the United States has only one chief executive at a time, and that position does not confer a lifelong “get-out-of-jail-free” pass.’ In February, Trump appealed the ruling to the Supreme Court. Around the same time I received a voicemail informing me that ‘the special trial for which you were summoned has been cancelled.’

The US district court for the District of Columbia, a federal trial court, sits just across the street from the Capitol building. The cafeteria offers an unobstructed view of Congress and its perfect lawns, including an area known as the Peace Circle, where rioters first began to push past police lines on 6 January. The court’s soaring central hallway features explanatory posters: ‘Because of their location and responsibilities,’ one says, ‘the courts of the District of Columbia circuit have a special role when those entrusted with faithful execution of federal laws are accused of breaking those laws.’ It was the DC district court that subpoenaed Nixon for his White House tape recordings and which tried and sentenced the men who broke into the Watergate complex on his behalf.

Attorneys from the Department of Justice’s unit for prosecuting ‘Capitol Breach’ cases have filed into the district courtrooms almost every day for the last three years. They are working with a deadline in mind: Trump has promised to pardon the 6 January rioters if he wins the presidential election in November and he would almost certainly shut down the unit overseeing the prosecutions. Even if he doesn’t win, the investigators only have until 5 January 2026 to complete their work because there’s a five-year statute of limitations for federal crimes. Press releases provide updates on the progress of the investigation: a hundred days after the attack, 410 rioters had been arrested; after two years, the total was 950. The most recent update, from August, reports that 944 defendants have been sentenced and 562 incarcerated. (According to a Seton Hall University study published last year, nearly 20 per cent of those prosecuted have a background in the military or law enforcement.) The FBI estimates that some 2500 people entered the Capitol illegally on 6 January, which means that more than a thousand rioters are still at large.

One of the rioters, a 32-year-old man from Virginia who shattered one of the glass panels leading to the Speaker’s lobby, was identified by his mother. Others have been turned in by their wives, exes, friends and children. A 32-year-old rioter from Houston was arrested after bragging to a woman he had matched with on a dating app, who promptly reported him; another was caught after talking to a fellow passenger on a flight; another after an FBI agent found his photograph on his wife’s account for the clothing marketplace Poshmark.

A handful of social media accounts have closely tracked the progress of the investigation into the events of 6 January, publishing court documents and circulating calls for the public to share information. An X user who operates an account called M & M Enterprises announces each new arrest with a gleeful ‘c’mon down!’ and posts daily schedules of court proceedings. Another account, Sedition Hunters, posts images of rioters who still haven’t been identified and gives them nicknames: a former marine who appeared at the Capitol dressed as a revolutionary soldier and who bears a passing resemblance to the comedian Conan O’Brien became #ConanO’Riot. He pleaded guilty to knowingly entering restricted federal grounds and was sentenced to 75 days in prison. Partisan databases also keep track of the rioters. Insurrection Index lists the names of political candidates and elected officials who participated in or supported the events of 6 January. Another site, American Gulag, has a searchable index of defendants, collects donations to cover their legal expenses and publishes their postal addresses in prison (there is also a nightly vigil outside the Washington jail where some rioters are held).

Defendants in the 6 January cases can choose to be tried by jury or by judge. Defence attorneys generally advise their clients to take a plea deal or, if they insist on standing trial, to opt for judge rather than jury. More than 90 per cent of voters in Washington DC backed Joe Biden at the last election, and the district’s juries have not been lenient towards the rioters. One defendant, a man from New Jersey who repeatedly assaulted police officers and threatened to drag members of Congress out of the building ‘by their fucking hair’, petitioned to have his trial moved to a different jurisdiction on the grounds that the authorities had characterised 6 January as an attack on ‘government institutions, generally, and democracy as a whole’. Since members of the Washington jury pool were likely to be ‘closely connected to the federal government’, he argued, they would ‘view themselves as the direct victims’. His motion was refused after the judge ruled that, according to this logic, ‘virtually no district’ in the country would satisfy the objection, because ‘the direct victims of an attack on “democracy as a whole” comprises the entire American polity.’ In November, a jury found the man guilty of three felonies and four misdemeanours; he is due to be sentenced next month and faces as long as twenty years in prison.

Almost all of those convicted have had to pay a fine of between $500 and $2000 in restitution for their role in the riot. (The cost of the damage to the Capitol has been estimated at $2.9 million.) Restitution must be paid by a cheque made out to the victim. In cases relating to 6 January, the victim is identified as the ‘Architect of the Capitol’, the federal agency responsible for maintaining the grounds of the Capitol, the Supreme Court and the Library of Congress. But there were also human victims on 6 January: four rioters and five policemen. One rioter, Ashli Babbitt, was shot by a Capitol police officer as she tried to climb into the House chamber. Another rioter died of a heart attack, another of a stroke, another from an overdose. The first police officer died on 7 January, after suffering multiple strokes linked to the stress of the assault. The other four killed themselves in the days and months that followed.

Over the past year I have attended fourteen of these trials, all of which have led to convictions. Sometimes I walk into a courtroom to find the public benches nearly empty. On other occasions supporters and relatives of the accused pack the seats while a reporter takes notes in the back. In October I watched the start of a jury trial of four California men affiliated with an anti-government militia. The defendants, wearing suits and American flag pins, sat clustered together at a table with their respective attorneys; one of them had brought a small box emblazoned with a crucifix. The government prosecutor showed footage of rioters scaling the Capitol walls and displayed a social media post in which one of the defendants likened the riot to the Boston Tea Party. ‘The transition of power has to happen peacefully,’ he told the jury. ‘These four men struck a blow to that foundational pillar of American democracy and they should be found guilty on all counts.’

The court took a short recess so that the judge could hold a ‘status conference’, a meeting with prosecution and defence attorneys about the progress of a case. The four rioters filed out into the hallway and another was led in. He wore an orange prison jumpsuit and his hands were cuffed, a ‘We the People’ tattoo visible on his right arm. On 6 January he had assaulted police officers with a pole while wearing a Stars and Stripes face covering and a bike helmet. (Many of the rioters covered their faces in the belief that this would shield them from prosecution; ‘No face no case,’ they told each other.) Twitter sleuths quickly identified him and he was arrested soon afterwards. He had been held in pre-trial detention ever since and had already pleaded guilty to two felony counts. In August he was given twenty years in prison, one of the longest sentences handed down to a 6 January rioter so far.

At the end of the status conference, the man was escorted out of the room and the four previous defendants came back in. One of their defence attorneys, a seasoned public defender who has represented a handful of rioters, addressed the jury. Her client couldn’t have broken into the Capitol, she told them, because by the time he got there it had already been broken into. Yes, he had trained in hand-to-hand combat techniques in a friend’s backyard, ‘but there is nothing illegal about that.’ She yielded the floor to another defence attorney, who stood up to argue that his client was a ‘scapegoat’ for the insurrection; he hadn’t been involved in the violence and was merely standing nearby. ‘If the mob does something, we don’t find that every single person within a five-mile radius is responsible,’ he said. The four men were convicted of criminal conspiracy and other charges; each was sentenced to between 21 and 33 months in prison.

In the US, the legal definition of a mob is ‘an assemblage of many people, acting in a violent and disorderly manner, defying the law, and committing, or threatening to commit, depredations on property or violence to persons’. This wording comes from a Texas law of 1897 designed to end a wave of violence during which ‘armed bodies of citizens would combine together, and take from the custody of the officers of the law persons accused of crime and would execute them.’ The law established that any officer who willingly turned a person over to a mob would be removed from his post and the members of the mob charged with murder. More than a century on, the definition of the mob is being reworked and reappraised in the DC district court. The goal of the government’s investigation has been to disaggregate the assemblage that attacked the Capitol into its component parts, but this has also had the effect of diminishing the scale and force of the event.

The law is an unwieldy instrument for dealing with mass crimes. Judith Shklar observed sixty years ago that one of the reasons for the failure of de-Nazification in Germany after the Second World War was that lawyers believed they were dealing with ‘a handful of deviants’ rather than a ‘social movement’. This mistake, she wrote, made ‘the relationship between the causes of and responsibility for these acts especially problematic’. A similar dynamic is playing out in the 6 January trials: defendants argue that they weren’t part of the mob, but were merely swept up by it. Trump claims he couldn’t control the mob; the mob claims it was under his sway.

At a trial in June the defendant, a retired policeman from New Jersey, twice broke into tears on the stand. He had never attended a Trump rally before 6 January. He told the judge that when he stuck up his middle fingers at the Capitol police he hadn’t meant to insult the officers themselves, but was flipping off ‘the establishment’. He had forgotten about the pocket knife he always keeps in his trouser pocket, he said, and only entered the Capitol to find a bathroom so that he could wash the pepper spray out of his eyes. When his attorney asked if he was embarrassed by his actions, he demurred. ‘I’m conflicted,’ he said. ‘I’m not embarrassed to have been there. I didn’t do anything to anyone.’ His wife wept in the gallery as he spoke.

At the sentencing in July of a Proud Boy supporter from Philadelphia, the defence attorney argued that ‘if you ranked [the rioters] in terms of culpability’, his client ‘would not be at the bottom, but he would also not be at the top’. He didn’t specify who sat at the top, but other defence attorneys have been less circumspect. At the trial in March of Michael Sparks, the first rioter to enter the Capitol illegally, the defence attorney argued that his client had merely been following orders: ‘He was there to do what his president had told him was the right thing to do.’ The attorney called Trump a ‘vile man’, prompting a look from his client. ‘His purpose in his own mind was to protect the constitution by influencing [Mike] Pence,’ the attorney argued. ‘He believed this because Trump and his supporters, and members of Congress, said that was the case. They should have known better, but there’s no reason Sparks should have.’

The Department of Justice has taken a bottom-up approach to the investigation, calculating that an accumulation of evidence against individual rioters would strengthen its case against Trump by enabling prosecutors to tie his words closely to the actions of the mob. That strategy has proved to be a spectacular failure. Jack Smith and his team have proceeded so carefully that it is all but certain Trump’s federal trial for alleged actions to overturn the 2020 election, including his involvement on 6 January, will not begin before the presidential vote in November, if at all.

A series of recent Supreme Court decisions have added further complications. On 1 July the court ruled that presidents enjoy sweeping immunity for official acts, leaving it to Chutkan to determine for which ‘unofficial’ acts Trump can be held accountable – a process that will probably take several months. In a separate case, the court ruled that neither Trump nor the more than three hundred defendants charged with the felony of ‘corruptly obstructing an official proceeding’ on 6 January could be held liable for that offence. The majority reasoned that the felony was designed to apply only to those who tampered with material evidence, a remarkably narrow interpretation of ‘obstruction’. A quarter of sentences are being adjusted, though since all defendants arraigned for the felony were also charged with other crimes none will be completely exonerated as a result of the ruling. Recently, Trump’s attorneys returned to Chutkan’s courtroom for the first time in almost a year to enter a ‘not guilty’ plea on his behalf.

Trials relating to 6 January are currently scheduled until the end of March 2025, two months into the next presidential administration. In July another federal case against Trump, for mishandling classified documents and stashing them in a bathroom at Mar-a-Lago, was thrown out by the Florida district judge Aileen Cannon. She argued that the case could not proceed in part because Smith had been illegally appointed as special prosecutor, a claim that would seemingly invalidate the investigations he oversees. (The Department of Justice has appealed the ruling.) In a post on his social media platform Truth Social, Trump wrote that Cannon’s decision was the ‘first step’ towards ‘Uniting our Nation’ and called for ‘the dismissal of ALL the Witch Hunts’ against him, by which he meant the state and federal trials that are still pending. Trump views these not as legal cases, but rather as ‘political attacks’ that are part of an ‘election interference conspiracy’. For some time, he and his supporters have been laying the groundwork for a legal and political effort to contest the results of the election if Kamala Harris wins.

The right has long recognised that law is a ‘political instrument’, as Shklar put it. Its members decry the ‘weaponisation’ of the judicial process while at the same time wielding it for their own ends. Democrats, meanwhile, cling to the illusion that the orderly workings of the court are sealed off from the unruliness unfolding just across the street. But to insist that these trials are not political fails to acknowledge why they were necessary in the first place. ‘There are occasions when political trials may actually serve liberal ends,’ Shklar writes, ‘where they promote legalistic values in such a way as to contribute to constitutional politics and to a decent legal system.’ The trial of an American president for attempting to overturn the result of an election could have been one such occasion, but we may never get the chance to find out. Even if Trump loses the upcoming election, his federal trial will be subject to further rounds of judicial appeal and, most likely, to Supreme Court review.

Before defendants are sentenced they are given the opportunity to address the court. A convincing expression of remorse can result in a more lenient sentence. ‘I got into seeing red, I was in a crowd and I got caught up in the moment,’ one rioter who had repeatedly assaulted police officers said before he was sentenced to 74 months in prison. In early July, a 55-year-old Mormon man who chanted ‘Treason!’ in the House chamber told the judge that he had made an ‘error of judgment’ by participating in an act that had ‘brought a kind of negative connotation to our entire nation’. He said that he owed apologies to his parents and to his wife, that he had stepped away from social media since that day and sought guidance from church leaders in order to understand how he had gone astray. ‘We need to accept who we have duly elected,’ he said. Christianity teaches us ‘to accept things that we aren’t in control of’. He was sentenced to thirty days in prison. A few hours later, a member of the Proud Boys told the judge that ‘I did make a big mistake. I let a lot of people down.’ He was ‘very sorry’. On the public benches, his two small children played with their toys. The judge sentenced him to one hundred days.