At a mid-December committee hearing, Rep. Liz Cheney, R-Wyo., the vice chair of the House Jan. 6 committee, brought former President Donald Trump’s potential criminal culpability for the Jan. 6 attack into full focus. Referring to Trump’s last White House chief of staff, Mark Meadows, she said: “Mr. Meadows’ own testimony will bear on another key question before this committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceeding to count electoral votes?”
As we embark on a new year, this question continues to haunt us.
As we embark on a new year, this question continues to haunt us. Cheney used the language of a prosecutor, quoting verbatim from parts of a criminal statute (18 U.S. Code § 1512) that outlaws obstructing official proceedings like the joint session of Congress at which the Electoral College votes are received and counted to determine our nation’s next president.
But no discussion of justice is complete without a survey of ongoing criminal prosecutions or the absence thereof. To date, the Justice Department has charged more than 700 people who are accused of having participated in the attack on the U.S. Capitol on Jan. 6. Though no case has yet gone to trial, many of the defendants have pleaded guilty and received sentences from probation to 41 months in prison. The fate of Trump, however, continues to hang in the balance.
If ever America was in need of some accountability — some justice — for what was done to her, it was in the year 2021. We’ve seen a spasm of national tumult arguably unrivaled in our nation’s history since the Civil War, beginning with a literal attack on the peaceful transfer of presidential power on Jan. 6 and culminating with a Congress on the cusp of subpoenaing its own members, in what may or may not end up being a productive exercise in accountability.
Two distinctly different, though arguably each accurate, stories could be written about 2021 on the accountability front — a classic “best of times, worst of times” sort of thing.
For those who like their glasses half-full, 2021 is culminating with a congressional investigation as historic as it is unorthodox. Historic because of the sweep, scope, drama and danger of what happened on Jan. 6, why it happened and who organized, funded, inspired and — yes — incited it. Unorthodox because the members of the House select committee conducting the inquiry are not only the investigators but also among the victims of the attack. This presents a challenging mix of motives even for those with the best, most honorable investigative intentions.
For the glass-half-empty crew, 2021 has proven to be a democracy-busting disappointment, with nary a political figure, Trump administration member or person sharing the former president’s last name being held accountable for what some have argued are crimes committed in the harsh light of day. The pessimists say justice seems to be stalled at the starting blocks with the starter’s pistol nowhere in sight.
Two distinctly different, though arguably each accurate, stories could be written about 2021 on the accountability front.
Using our current legal landscape as an accountability snapshot, it’s hard to see what, if anything, we can extrapolate. As we enter a new year, there are signs of accountability on the horizon: Trump adviser and self-proclaimed deconstructor of American democracy Steve Bannon stands criminally indicted on two counts of contempt of Congress. This has at least a patina of looming accountability; that is, until we recall that Bannon has been indicted before — accused of defrauding Trump supporters via a bogus “We Build the Wall” foundation — only to be pardoned by Trump. So that accountability is in the eye of the beholder.
Meadows may — or may not — be on the road to suffering the same fate as Bannon. On the very day a Washington, D.C., grand jury indicted Bannon on a charge of contempt of Congress, Meadows failed to appear under a lawfully issued congressional subpoena, thereby committing precisely the same crime as Bannon. Congress voted to hold Meadows in contempt and referred him to the Justice Department for prosecution. But the grand jury has yet to indict Meadows, and it’s anybody’s guess whether the Justice Department will be as willing to seek an indictment of a former chief of staff as it was when it indicted a governmental nobody like Bannon.
Former Justice Department official Jeffrey Clark seems to be suspended in accountability amber at the moment. Recall that when Trump was told that there was no widespread fraud undermining President Joe Biden’s win, he was reported to have said, “Just say that the election was corrupt and leave the rest to me” and his allies in Congress. Clark apparently took Trump up on that conspiratorial ask, went back to his office at the Justice Department and drafted a letter giving Georgia elections officials a road map to corruptly overturn the election’s results.
Not surprisingly, the House committee subpoenaed Clark to testify. Clark responded 1) by appearing before the committee but refusing to answer questions while asserting no legitimate legal privilege and eventually storming out in a huff, then 2) by announcing through counsel that in any future appearance before the committee he would invoke his Fifth Amendment right against self-incrimination and then 3) missing several appearance dates, allegedly because of unspecified health issues. Suffice it to say, Clark’s situation seems like a mixed bag, at best, on the accountability front.
Any discussion of Clark leads directly to Rep. Scott Perry, R-Pa. In a first for the Jan. 6 investigation, the committee members asked one of their own colleagues, Perry, to provide documents and testimony about the run-up to the attack on the Capitol. Among other topics, the committee indicated that it wanted to question Perry about his attempt to assist Trump in installing Clark as acting attorney general. Oh, yes, there’s also that pesky matter of Perry and Meadows’ reportedly communicating via encrypted apps, inferentially to avoid discovery of what they were talking about. No, friends, you can’t make this stuff up.
In an absurd display of deflection and dissembling, Perry announced that he wouldn’t accede to the panel’s requests because the committee is an “illegitimate entity” and that, because he has “tremendous respect for the rule of law,” he couldn’t possibly associate himself with such an illegitimate endeavor. Perhaps Perry missed the multiple legal opinions, issued by both trial and appellate courts, that ruled that the House committee is entirely legitimate, doing precisely what it is authorized to do, because the courts determined that it has any number of valid legislative purposes. So Perry’s dodge is as absurd as it is baseless. But perhaps the most amusing response comes from Rep. Jim Jordan, R-Ohio. When the Jan. 6 panel recently announced that it was seeking testimony from Jordan about, among other things, his conversations with Trump on the day of the Capitol attack, the best Jordan could come up with was more or less that he has “real concerns” about the committee, alleging that it “altered” a text message he sent to Meadows urging former Vice President Mike Pence to disregard Electoral College votes Pence deemed “unconstitutional,” a process without lawful or constitutional authority. Jordan suggested that the committee added, deleted or misplaced a period in his text, which was shortened. The committee, Meadows said, “completely misled the American people.” This has been the basis for Jordan to potentially decline to cooperate with the Jan. 6 investigation. Someone should explain to Jordan that, although the law recognizes many testimonial privileges — attorney-client privilege, doctor-patient privilege, priest-parishioner privilege, spousal privilege, executive privilege — there is no such thing as misplaced-punctuation-privilege that would authorize him to ignore a lawfully issued subpoena. As we approach the anniversary of the Capitol attack, we have yet to see any political figure held accountable for the assault on our democracy. So far the most hopeful — or ominous, depending on your perspective — sign of things to come can be found in that recent observation by Cheney when she addressed Meadows. Yes, as we approach the anniversary of the Capitol attack, we have yet to see any political figure held accountable for the assault on our democracy. And to many, this feels like justice is at a standstill. The optimists might observe that the Watergate scandal took more than two years to come to fruition with significant prosecutions and convictions. So with just one year under our belt, we are far from a justice endgame. The pessimist rightly could counter with the fact that the Watergate crimes didn’t involve the kind of direct attack on the very existence of our democracy that we experienced on Jan. 6 and, frankly, continue to experience. At this moment, the end of the justice story has yet to be written, and it remains to be seen whether history will record this period in our nation’s history as a time when we rose to the challenge of accountability and allegiance to the rule of law or as the final chapter in what was a once-great American story.
Glenn Kirschner
Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and MSNBC legal analyst. 
