Capitol attack: Where does American democracy go from here?

As the nation processes the unprecedented mob attack on the U.S. Capitol, many are wondering what happens now for America. Legal scholar Claire Finkelstein shares her thoughts on the siege and its effects on democracy.

The U.S. Capitol building is seen at dusk
The U.S. Capitol at dusk.

What should have been a routine legislative gathering to certify Joseph R. Biden Jr.’s election victory turned into a deadly siege as supporters of President Donald Trump stormed the U.S. Capitol, attacking police officers, ransacking offices, and taking over the Senate chamber before being dispersed hours later.

It was a dark and unprecedented moment in American history. Where does the nation go from here?

Penn Today spoke with law professor Claire Finkelstein, who directs Penn’s Center for Ethics and the Rule of Law, about what happened, potential ramifications for the president and nation, and what America must do to preserve its fragile democracy.

First, how would you characterize what happened? Some are calling it a coup, an act of sedition, a riot. What’s the right terminology?

I would definitely characterize yesterday’s events as multiple acts of sedition on the part of the rioters who broke into the Capitol building, which they did not just in order to commit acts of vandalism but to halt our democratic machinery from going forward and to try to stop the peaceful transition of power from one administration to the next. That’s quite arguably ‘seditious conspiracy’ under federal law.

How is sedition punished? What are the ramifications?

We have very little precedent for prosecuting people for sedition after the Civil War, but a rare recent example would be its use against terrorists like Sheik Omar Abdel Rahman, known as ‘the Blind Sheik.’ It’s ironic that we’re talking about a crime whose only relevance has been fighting Middle East terrorists and members of the Confederacy at the time of the Civil War. The most important thing for us to assess at this point, and to assess it very quickly, is what influence the president’s actions had on the decision to try to overthrow the U.S. government. Are these rioters just following his lead because they’re inspired by him, or is there some more direct intentionality going on the part of the president?

For example, why was the National Guard not in place prior to Wednesday’s events? We all knew that there were going to be potentially violent demonstrations and Mayor Muriel Bowser had requested National Guard coverage. Why were the demonstrators allowed to come so close to the Capitol building? Why did the Capitol Police not have better reinforcements? Those are some of the questions that we need to know in order to really know whether or not there’s a more generalized conspiracy to commit sedition going on here.

There have been calls to impeach Trump again, and there have been calls to invoke the 25th Amendment. What should happen over these next two weeks while Trump is still president?

If we were to try to remove Donald Trump from power prior to the inauguration, the 25th Amendment would be the way to go. The reason for that is that because of the immediacy of the loss of power under the 25th Amendment. The vice president and a majority of the members of the Cabinet would just have to write a letter to Nancy Pelosi and Chuck Grassley saying that Donald Trump was unfit for office and Vice President Pence would immediately become the acting president and the provisional commander-in-chief. It would then go to Donald Trump to affirm or reject that, and he would of course reject the assertion that he was unfit for office. Once it was affirmed again by the vice president and members of the Cabinet, the vice president can be in charge for up to 21 days while Congress deliberates, and that’s all we need, given that the inauguration takes place in less than two weeks. This move would give us the security that we need to ensure that we could proceed with a peaceful transition of power, and that Donald Trump could not use the Insurrection Act to call on the military to assist with his bid to remain in power.

Impeachment is a lengthy, cumbersome process, the outcome of which is very uncertain, as we’ve already seen. I don't think impeachment is feasible prior to the inauguration, but it can be conducted after the inauguration even if the 25th Amendment is invoked, to make sure that Trump cannot run for office again in 2024.

Trump has been encouraging his supporters to not accept the election results, to fight back, and some say we should have seen what happened at the Capitol coming. Yet America looked unprepared. How did that happen?

That’s the question, namely why the call by the mayor of D.C. for National Guard presence in advance was not respected. Normally, state and local officials can call out their local divisions of the National Guard, but that’s not true in D.C., where it has to be the president, given that D.C. is not a state. It seems to me entirely possible that the reason that the National Guard did not deploy in advance of the event was because the president called them off. If we were to discover that then I would think that removal by the 25th Amendment would be absolutely indicated and that he might well be prosecuted after leaving office for sedition.

Was he just inspiring his supporters or was he actually directing events in order to help bring about what happened? That makes a critical difference because it indicates his intent and the impact that his actions may or may not have had the breach of the Capitol and the loss of life.

Woman wearing diamond earrings and black blazker looks into camera
Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy and the director of Penn’s Center for Ethics and the Rule of Law.

Where does this leave our democracy? Is it possible to overcome this assault?

We’ve been put on notice that our democracy contains serious faults and fissures, and we are going to have to do everything we can to repair those faults over the next four years with the Biden administration. But yesterday’s events also contain some signs of hope. Senate Majority Leader Mitch McConnell and Sen. Lindsey Graham have done so much on their own to damage our democracy over the past four years in supporting Donald Trump and supporting his authoritarianism. But when the chips were down, to hear McConnell and Graham actually speaking out in favor of the peaceful transition of power, actually being willing to say, ‘Enough is enough. We have to accept the results of the election. We need to proceed with the certification, and we cannot support Donald Trump's bid to overturn the election anymore.’ That is a kind of healing moment and provided an education for all Americans.

The other thing that gives me hope is the way that our court system functioned in the run-up to Wednesday’s events. In effect, Donald Trump was left with nothing other than inciting his followers to violence because we’ve had 61 court decisions, some of which were decided by judges appointed by Donald Trump, siding with a valid and fair election. Donald Trump’s own Department of Homeland Security said there was no fraud in the election. Despite a record number of appointments to the federal bench made under the current administration, including to the Supreme Court, federal judges still sided with the rule of law rather than any personal fealty to Donald Trump.

How has this attack affected our standing in the world?

It’s damaged it considerably. When you have an authoritarian leader like Turkey’s President Recep Tayyip Erdogan making statements that he is concerned about U.S. democracy, you know that we are now no longer that shining city on the hill. We have damaged our image in front of both friends and enemies. Donald Trump and those who have sustained and supported him have helped to put us on a par with the Kremlin, Saudi Arabia, Iran, Turkey, and North Korea, rather than strengthening our relationships with our traditional democracies such as Canada and Western Europe. We are going to have to do an awful lot to repair our own systems of democratic governance to restore our image and our trustworthiness with regard to our traditional allies. I know that will be a high priority for the Biden administration.

What role does education play in helping repair the damage?

Institutions of higher learning have a critical role to play in teaching future leaders about the importance of democracy and exactly what is required to sustain it. I think that we suffer from the fact that we do not teach civics anymore at the secondary school level. It is no longer an expected part of the curriculum, and young people do not grow up with a commitment to democratic governance and understanding what is required to maintain it.

Educational leaders need to rethink how we go about educating future voters and future political leaders in our system, especially leaders from elite universities like Penn. We have to think about what we can do in order to foster the kind of civic virtue that democracies need to survive.

What’s the most important thing Americans should know about what happened Wednesday?

They should know three things. Number 1, the next 14 days are going to be critical for our democracy, and we all need to do everything we possibly can to sustain and protect it. This means not just focusing on Washington, D.C., and Biden’s inauguration, but it also means looking here at home. We had events in the statehouse in Pennsylvania this week that are on a par with what happened in Washington. GOP members of the state senate refused to seat a democratically elected state senator, namely Jim Brewster, and kicked out by a specious vote the lieutenant governor of the state, John Fetterman, who was presiding as president pro tempore over the state Senate.

The second thing that they should know is that there is a very sizable contingent of people in this country on the very far right of the GOP who have been powerfully influenced by Donald Trump to side with messages of hate and white supremacy, and they’re not about to go away. They are not in favor of democracy; they want to destroy our democracy, and they are in favor of using every possible means including violence to accomplish that aim. This far-right fringe of Donald Trump’s supporters is illiberal in the extreme, and they identify with neo-Nazism and racist Confederate ideologies. That is a situation that we are going to need to attend to after the inauguration and for the foreseeable future. We are going to have to understand their mindset and address their growing influence, as well as to use every bit of law enforcement that we have to protect ourselves against their increasingly powerful position in U.S. politics.

Finally, Americans need to understand how fragile our democracy is, how little we should take it for granted, and how hard we have to fight to keep it. We need to insist on transparency and ethical conduct on the part of our elected representatives, and personal values of integrity supply the glue that assures we remain a country governed by the rule of law. We have learned that we must do everything we can to try to protect basic components of our democracy. That task is urgent and cannot wait.