Trump's Jan. 6 pardons could encourage more violence, says lead investigator

Tim Heaphy served as chief investigative counsel for the House Select Committee to Investigate the January 6th Attack on the United States Capitol and wrote the official after-action report about the deadly 2017 Unite the Right rally for the City of Charlottesville. As he puts it, he has become an “accidental expert” on political violence. That's why Heaphy’s new book, “Harbingers: What January 6 and Charlottesville Reveal About Rising Threats to American Democracy” must be viewed as a wakeup call about the possibility of more political violence in the near future.

I spoke to Heaphy for Salon Talks recently, and he said that he is “very concerned” we will see more political violence in the future. One specific reason he cited is that Donald Trump has not been held accountable for his role in inciting Jan. 6 attack. In Heaphy's words, Trump was "the leader" of that attack and "the head conspirator who put in motion a series of legal steps that ultimately culminated in storming the Capitol."

Heaphy noted that as a former U.S. attorney, he understands that accountability is designed to deter people from engaging in future criminal conduct. The egregious failure to hold Trump accountable, coupled with the incoming president's repeated promise to pardon the Jan. 6 attackers, "almost encourages" more violence, Heaphy explained.

Heaphy added that his investigation found that the fuel for political violence is generally not a powerful individual, but a widespread sense of grievances. His research found that both the Jan. 6 attack and the Charlottesville riot were not truly “a conflict of right or left.” Rather, both were about "insiders versus outsiders or people who believe in institutions, who are invested in them, who rely on them, and people that don't trust those institutions." Those who resort to political violence, he added, "don't trust government, don't trust media, don't trust higher education or even science in some cases."

Those views were amplified in both incidents by social media, which Heaphy says became the primary avenue for radicalization. As an example he offered Stephen Ayers, who testified as a witness in the Jan. 6 hearings. Ayers said he had learned about Trump’s claims of election fraud from Facebook, and once he began clicking on that kind of content, the Facebook algorithm pushed him toward much more of the same. Ultimately, that drumbeat of pro-Trump falsehoods incited Ayers to travel from Erie, Pennsylvania, to Washington on Jan. 6 to "fight for Trump."

Watch my Salon Talks interview with Heaphy or read a transcript of our conversation below to hear more of Heaphy's conclusions from studying the Charlottesville and Jan. 6 tragedies, and his prescription for reducing the potential of political violence moving forward.

This transcript has been lightly edited for clarity and length.

In your book, you talk about "accidentally" becoming an expert on political violence. How did that happen?

I live in Charlottesville, Virginia, and have lived there for over 20 years. I was U.S. attorney for that district and when Aug. 12, 2017, happened, the racial violence in our community, it was really troubling, really disconcerting. I wanted to do something to help understand and recover from that event. I actually reached out to the city, to the mayor, to the city council, and said, "Look, you ought to do some kind of after-action and evaluate how the preparations and management went," because it obviously had not gone well. They hired me, as a lawyer in private practice, to do an independent report of how the city managed the Unite the Right rally. That was very intense. It was 90 days, it was a sprint to put together that report, which was ultimately very critical of our client, the city. 

When Jan. 6 happened some years later, I was the general counsel at the University of Virginia, and saw a lot of parallels right away. When the select committee was formed, I had a mutual friend in Congress who connected me to the speaker's staff. I had done the Charlottesville report, which clearly had some parallels, and they hired me to run the Jan. 6 investigation. I didn't go out and decide I was going to be an expert in mass demonstrations and violence. It just sort of happened because of those circumstances.

What parallels did you find between Charlottesville and Jan. 6? You mention that the divide you observed was deeper than just right versus left.

Both Charlottesville and Jan. 6 started with an impetus, an issue that created an initial conflict. In Charlottesville, it was Civil War statues. At the Capitol, it was the election. Each event started from that core impetus to become a much broader forum for anger, for grievance, for people that were just mad at institutions. Charlottesville became about race and the great replacement theory and what's going on more broadly in this country, way beyond the statues. At the Capitol, a lot of people were there motivated by the election, but some of them were there because they were angry about COVID restrictions or some of the same motivations from Charlottesville, the sense that they were being replaced.

What we're dealing with in this country is really a conflict, not of right or left, but of insiders versus outsiders. People who believe in institutions, who are invested in them, who rely on them, and people that don't trust those institutions, don't trust government, don't trust media, don't trust higher education or even science in some cases. That's the fundamental tension that I think those two events point out.

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Do you see a potential for tension like that as we see a rising oligarchy in our nation? Some people in the rank and file on the right think the super-wealthy are their friends. Ultimately, I think they're going to learn they’re not.

You look around the world and this same pattern, insider versus outsider, creates a vacuum in which oligarchs rise. Yes, you see hints of that here. I do think that ultimately those super-wealthy people, those titans of tech or other industries, are really in it for themselves, not for the common good. We're not electing them to anything and their influence. I think, is troubling.

You talk about social media being something that fueled both attacks. Now we have Elon Musk, who has taken the guardrails off X, with Mark Zuckerberg apparently following suit at Meta. What are your concerns, going forward, when you see that?

I was surprised in investigating both Charlottesville and the Capitol attack at how many people in this country only get their news, their information about what's going on in the world, from these curated social media feeds. Rather than going directly to Salon or the New York Times or NPR, they're only really seeing any reporting if it's fed to them through the algorithm-driven platforms. That results in people only getting content that reaffirms their perspective. That's what the algorithms do — they pump you stuff that is similar to things with which you've engaged. 

There's also very little content moderation. There's a lot of stuff out there that is pumped through the algorithm that's just wrong. It's just false. The biggest example of this is Stephen Ayers, who was a witness in the Jan. 6 hearings. He's a carpenter from Erie, Pennsylvania, and going to work every day, he’s surprised that President Trump lost the [2020] election. He started reading about it on Facebook and pretty soon he's getting content through his suggesting all this widespread fraud, with no basis in fact. He finds himself at the Ellipse and goes down to the Capitol. Now, he's not a victim, we all have a responsibility to educate ourselves, to sift the information we get. But that more and more is how Americans are receiving information.

A lot of people at Trump rallies are not getting their news anymore even from X or Facebook, they're getting it from Truth Social. How do you reach them?

It's very difficult. I think you reach them by starting really early. We have to teach young people how to navigate this information ecosystem. We’ve got to make them educated consumers, and we all have to be that way ourselves. I think some transparency about these algorithms and how they work would be helpful. I think trying to restrict these bots or fake accounts pumping lots of information and driving the algorithms would help. But it's not social media's fault, it's really the consumer's fault. It's our fault. They're profit-driven companies and they should be maximizing profit for shareholders. We collectively need to be better at navigating that landscape, starting with young kids.

You worked on the Jan. 6 committee. From what you found, what was the role that Donald Trump played in the insurrection that day?

He's the proximate cause. He's the leader. He's the head conspirator who put in motion a series of legal steps that ultimately culminated in storming the Capitol. It started with a bunch of lawsuits, which is the prerogative of any candidate, to file lawsuits challenging the integrity of the vote. All of them failed. We then moved on to pressure on state legislators to recount or to pause the certification of the electors. We then moved on to the submission of fake elector certificates, pressure on members of Congress to object and, ultimately, pressure on the vice president to do something that had no basis in law and fact. None of those things worked. He continues to pull each lever, and none of them are opening the door. The last and biggest lever he has is his angry crowd, and he fires them up at the Ellipse and sends them down to the Capitol where they literally interrupt the joint session. 

This was a multi-part conspiracy that he led at each step that resulted in the attack on the Capitol. He's the leader. He's responsible for what his campaign lawyers did, for what his chief of staff and his administration did. He's responsible for all of it, and he was directly involved, as the committee's evidence showed, in each of these steps, methodically pulling each of those levers.

From your perspective as a former U.S. attorney, what does it say that Donald Trump has not been held accountable for his role on Jan. 6?

It's really disconcerting, and it undermines the rule of law. I say in the book that I think aggressive prosecutions by the Justice Department would have a deterrent effect. It's more likely that people will pause before they're willing to engage in the kind of thing that we saw at the Capitol if they remember how many people's lives were upended, justifiably, by the criminal justice involvement. 

The same thing happens in reverse, though. If people are allowed to commit those kinds of violent acts — way beyond speech; this was conduct — and are not held accountable, it almost encourages more. It can be a deterrent, but it can also be a facilitation if there's no accountability. I worry that pulling back from these jury verdicts, these guilty pleas, sends the wrong message and empowers people in the future to do similar things.

Donald Trump has pledged to grant mass pardons to people prosecuted for their involvement in Jan. 6. What message do you think he is trying to send?

The message that he is trying to send, which is incorrect, is that people are being prosecuted or have been prosecuted for their political views. That's just not the case. The only people who have been criminally charged went beyond speech and engaged in conduct which was criminal. If this rally had been a lot of angry people chanting "Stop the Steal" and waving Trump flags, but not assaulting police officers and not breaking windows and climbing through them to get into the Capitol, there's no crime. No one is prosecuted simply for believing that the election was stolen and being at the Capitol. They had to go beyond that into conduct.

There's a range of culpability. Some simply stepped over that broken glass and those bloody stairs and went in, and they were charged with trespassing or disorderly conduct. Those are misdemeanors, they're the least culpable. Some were convicted of seditious conspiracy, advocating the use of force to disrupt the lawful function of government. That's the Proud Boys and the Oath Keepers, that's the most serious. There are some in between, who were at the Capitol and who did commit acts of violence. I'm not sure if the president will draw any sort of distinction between them. Will he equate the misdemeanor trespassers with the seditious conspirators and give them all a blanket pardon? I hope not. I hope there's some recognition that a pardon to some of the people on that most culpable end of the spectrum would send a horrible message to law enforcement and everybody else. We're going to have to wait and see, after Jan. 20, what comes out.

Was Donald Trump not being prosecuted an example of the system failing, or is it more accurate to say that the system is designed to protect the wealthy and powerful?

No, I think the system failed. I think the system was slow-footed here. When we at the select committee were conducting our investigation, we were getting people before they'd been interviewed by the Department of Justice, and these were people that were centrally involved, pulling these levers in this multi-part plan. We were talking to high-placed members of the White House staff or the president's own family or members of his administration who said, "Nope, we haven't received any inquiry from the Department of Justice." 

It wasn’t until the select committee actually started having these hearings that people over there said, "Hey, wait a minute, maybe there really is criminal conduct here." I don't know why that is. I don't know what informed those discussions inside the Justice Department. We didn't even start until the end of 2021, so we were even a year late. If everybody had focused on this right away, arguably you could have had charges and adjudication prior to the election.

What are your concerns about our institutions under this administration, considering that your work has been literally devoted to protecting those institutions?

I say in the book that we can't wait for government to fix this problem, this lack of faith in institutions. Unfortunately, in my view, in our representative government the rules are designed more to protect incumbency than to solve real problems. I look at my own congressional district in Charlottesville, the 5th district of Virginia, which is gerrymandered to be a safe Republican district. The people who live in Charlottesville, my liberal college community, really have no voice every two years in selecting our member of Congress because the district is drawn to be very favorable [to Republicans]. When you couple gerrymandering with the incessant amounts of money that flow in, primarily to incumbents, the system is designed to entrench those that are in power. They're the ones who write the rules and therefore they don't have much incentive to change them. I think that creates cynicism. 

I do think there's a basis for some people's anger at institutions, and then I worry about that. Unless we fix that process, create more incentive to compromise, create more general political competition, I think government will continue to be somewhat distant and unable to solve the problems of real people.

What happens if there's growing apathy and people continue to check out? We just had an election where many commentators said, "Our democracy w on the line," and a third of Americans still sat out.

I'm glad you raised that, because I think that's as big of a threat, or a bigger threat, than anger. You can have one of two reactions to cynicism about the system. Anger: You go to the Capitol and charge it, you fight with people that disagree with you, like in Charlottesville. Or you can just say, "You know what? It doesn't matter. I don't need to vote. I don't need to pay attention, because they're all the same."

A third of registered voters didn't vote in this election. That doesn't even touch all the people who could register, who have not. I think if everybody in America votes, pays attention, participates, educates themselves, we're fine. Democracy will be there. But if people don't, if their cynicism makes them withdraw, then we give outsized power to these extreme perspectives and we are in real trouble.

How can we reach out and get people informed? Is it about trying to get people in the Republican community to speak to their fellow Republicans, and the same thing for Democrats?

I think it has to be really organic. It has to start in your family, has to start in your school, your community. It has to start in your church, in your neighborhood. It has to be ground-up rather than top-down. And how do we encourage that? I'm really attracted to things like a creative, incentivized national service where we put people together who are different, and they're building trails in Colorado or working in nursing homes in New York City. Let's find ways to bring people who are different together in lots of different settings, educational or work settings. That's the kind of organic ground-based solution that I think it's going to take.

I think what's going to happen politically, though, is that some things that happen with this new administration are going to prompt a really strong backlash. If you believe what Dr. King said, that the arc of history bends toward justice, it'll be jagged, there'll be steps backward, but maybe some of the things that happen in the next four years will prompt participation, or prompt people to care more and engage more fully going forward.

How concerned are you about more political violence going forward?

I'm very concerned about it. We've seen event after event where people sort of scratch their heads and say, "Wow, did that really happen?" Well, yeah, and you should be less and less surprised going forward. When you have things like lack of accountability, I think that only encourages the potential for more violence, so I'm very concerned. 

I do think law enforcement is getting better at preparing for some of these things, but not always. We can't always count on our law enforcement to protect us from political violence.