In 2012, Jane Bashara was found strangled in the back of her SUV in a Detroit alley. Her murderer was sentenced to 17 to 28 years in prison. Her husband, who hired the killer, got a life sentence.
This story’s lessons about the relative culpability of a hitman and the one who orders the hit came to my mind when watching Tuesday’s hearing before the House’s select committee investigating the Jan. 6 attack on the Capitol. Officer Harry Dunn of the U.S. Capitol Police, one of four officers who testified, was asked what he thought the committee’s goal should be.
“If a hitman is hired and he kills somebody, the hitman goes to jail,” Dunn replied. “But not only does the hitman go to jail, but the person who hired them does.” The committee’s job, he said, is to figure out who ordered the hit.
Dunn and his colleagues had just testified in painful detail about their experiences during the siege. They described how the mob had savagely attacked them with deadly weapons and racial slurs. Sgt. Aquilino Gonell said he and other officers from the Capitol Police and Metropolitan Police Department were “punched, pushed, kicked, shoved, sprayed with chemical irritants, and even blinded with eye-damaging lasers,” comparing the hand-to-hand combat he experienced that day to “a medieval battlefield.”
The Department of Justice has charged more than 500 defendants who were at the Capitol on Jan. 6 with offenses such as entering a restricted area, disorderly conduct, assaulting an officer and conspiracy to obstruct an official proceeding. Many of them can be seen committing their crimes in photos and videos and on social media. Notably absent from the list of defendants are those who organized the attack. To use Dunn’s analogy: No one has been charged for hiring the hitmen.
Under the law, someone who encourages another person to commit a crime with intent that the crime occur is guilty of the crime itself under an aiding and abetting theory of liability.
Under the law, someone who encourages another person to commit a crime with intent that the crime occur is guilty of the crime itself under an aiding and abetting theory of liability. In fact, the person who masterminds the crime is considered more culpable than those who commit the dirty work. Under the U.S. sentencing guidelines, being a leader, manager or organizer of a crime is considered an aggravating factor deserving of enhanced penalties.
Dunn did not say who he had in mind when he made his comparison, but he noted the attackers had made it clear they were there to “stop the steal,” and he asked the committee to “get to the bottom of that.” Dunn has earned the right to ask the committee members to go deeper in their investigation to determine the causes of the attack.
One obvious suspect is former President Donald Trump. We know from public statements that Trump encouraged his supporters to come to Washington for the counting of the vote of the Electoral College. The count that would make his defeat in the 2020 presidential election official was set for Jan. 6. In December, he tweeted, “Big protest in D.C. on January 6th. Be there, will be wild!” Throughout the early days of January, he repeated his tweets to supporters to come to Washington on Jan. 6 to “Stop The Steal.”
On the morning of Jan. 6, Trump spoke at a rally near the White House, where he exhorted the crowd to “save our democracy” and to “fight” and said it was “up to Congress to confront this egregious assault on our democracy.” He even suggested going to the Capitol:
“And after this, we’re going to walk down, and I’ll be there with you. … We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness. You have to show strength, and you have to be strong.”
Members of the crowd proceeded to storm the Capitol, delaying the vote count for several hours. The committee should document Trump’s tweets and speech for the record, but it needs to go beyond those items of evidence, already documented during his second impeachment trial. Instead, they must look beyond his public statements. Was this simply a passionate crowd that got caught up in the hysteria, or was there an organized attempt to thwart Congress’ work? We need to know if he discussed a concerted effort to disrupt the vote count with his advisers and associates. We need to know if he did so to hold onto the presidency. Moreover, was this simply a passionate crowd that got caught up in the hysteria, or was there an organized attempt to thwart Congress’ work? Who funded travel to Washington for individuals and groups who planned to commit acts of violence? These people didn’t show up in Washington spontaneously. We also need to know why it took so long for the National Guard to respond. And perhaps most crucially: Why did Trump delay in asking the mob to leave the Capitol, even after lives were lost? All of these questions need answers to paint a full picture of not only what happened at the Capitol but why it happened, so we can prevent it from ever occurring again. Like Jane Bashara, we deserve to see accountability not just for the hitmen, but for the people who first thought to put a hit out on Congress in the first place.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
