Jurisprudence

Accountability for the Ringleaders of Jan. 6 Must Come from the States

Jenna Ellis flashes a smile at the camera.
Lawyer Jenna Ellis (R) listens to Melissa Carone, who was working for Dominion Voting Services, as she speaks in front of the Michigan House Oversight Committee in Lansing, Michigan on December 2, 2020. Jeff Kowalsky/Getty Images

One of the most chilling moments during Thursday’s January 6th committee hearing came when renowned conservative former judge Michael Luttig stated “Donald Trump and his allies and supporters are a clear and present danger to American democracy. The former president, his allies, and supporters pledge that in the presidential election of 2024, if the former president… were to lose that election, they would attempt to overturn that election in the same way they did in 2020, but succeed in 2024 where they failed in 2020.” Fortunately, there is a solution, and it centers in the same place as the danger: the states.

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First, the challenge.

Just this week, Jim Marchant won the Republican primary for secretary of state in Nevada, seeking to fill the open seat left by term-limited Barbara Cegavske, a Republican who defended the state’s elections in 2020 and was later censured by the state GOP for not doing enough to investigate nonexistent voter fraud. Marchant is one of more than 100 primary winners so far this year who have embraced lies about the 2020 election.

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Earlier in the week, Doug Mastriano, fellow election denier and Republican gubernatorial candidate in Pennsylvania, hired former Trump campaign lawyer Jenna Ellis to serve as his chief legal advisor. Mastriano, whom Ellis herself has dubbed “the Donald Trump of Pennsylvania,” is similarly campaigning on erroneous claims about our elections and supporting dangerous policy changes. He aims to re-register all Pennsylvania voters and de-certify voting machines in counties he deems to be producing “fraudulent” results. In 2020, as a state senator, he was one of the leading voices in the commonwealth connected to January 6 and conspiracies about the 2020 election.

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These candidates and their successful primary campaigns are a stark reminder that the insurrection—and the lies that sparked it—did not end on January 6, 2021 or when former President Trump left office. And they are proof that the kindling for the attack—and the continued stoking of the fire—is alive and well in the states.

We can expect to hear more about this as we tune in to the bipartisan House Select Committee next Tuesday when state officials are expected to testify and, again, in the weeks ahead. The hearings are highly visible and powerful reminders of Congress’s investigative authority and constitutional power.

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Accountability at the state and local level will also be crucial to cutting off the oxygen to the anti-democracy fires burning all over the country. As former state officials and election experts, we are keenly aware of the tools available to states to prevent insurrectionists (and their enablers) from undermining the will of the voters for political gain. We believe they should use them.

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To be sure, accountability at the federal level should be a top priority for prosecutors at the Justice Department. Just this week, the Department announced a plea deal for a man charged with threatening an election official. We know that the department is watching the Select Committee’s work closely. We also know that two-thirds of Americans support the Department‘s bringing legal action against an elected official who attempted to overturn an election.

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State and local election officials—from secretaries of state to county clerks—hold the keys to our democracy, and state and local officials can play an outsized role in bringing truth and justice to bear on the attack on the American people and our freedom to vote. We propose three avenues for accountability.

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First, hold the bad lawyers accountable. Going after the professional credentials of the attorneys who encouraged Trump’s subversion in 2020 has had success thus far in blocking their ability to continue undermining our elections in the courts of law and diminishing their power in the court of public opinion. For example, last Friday, the D.C. Office of Disciplinary Counsel brought charges against Rudy Giuliani for making frivolous voter fraud claims in federal court. The action could lead to the suspension or revocation of his D.C. law license, on top of Giuliani’s interim suspension in New York and D.C.

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Our organization, States United, filed bipartisan ethics complaints against Trump lawyers like John Eastman, who featured so prominently in the latest hearing for his role in the plan to subvert the slates of electors submitted to Congress during the joint session. We also filed a complaint against Jenna Ellis. We will likely hear more about her role in the coming state-focused hearing. Much like Ellis, Eastman had not given up the game: he advised legislators in Wisconsin on how to “decertify” their slate of 2020 electors as recently as March 2022. The California Bar took the rare step of publicly announcing an investigation into Eastman, deviating from their usual policy of confidentiality. That indicates just how much interest there is in seeing Eastman brought to account.

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These actions can be a pointed way to punish those who step outside the bounds of our democracy—and we need to see more of them following the Select Committee hearings.

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Second, local officials like district and county attorneys can bring criminal charges against those who work to defraud our elections. In Georgia, Fulton County District Attorney Fani Willis impaneled a special grand jury to investigate possible criminal charges against Trump and his enablers for their actions in the 2020 elections. The investigation centers on the former president’s call to Georgia Secretary of State Brad Raffensperger, infamously pressuring him to “find 11,780 votes” to tip the scales of the election.

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DA Willis has an exceptionally powerful case to make. The evidentiary record is strong, and Georgia criminal law explicitly bars solicitation and conspiracy to commit election fraud, as well as providing avenues for prosecutors to pursue RICO charges which may well apply to Trump. The Fulton County investigation is thus one of the most consequential efforts happening nationally.

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Finally, as the top law enforcement officials in their jurisdictions, state attorneys general have a clear role to play. Last year, District of Columbia Attorney General Karl Racine brought a first-of-its-kind civil lawsuit against the Oath Keepers and Proud Boys for damage done to the district and the harm suffered by law enforcement officers who risked their lives to defend the Capitol and our democracy on January 6, 2021. States United is proud to serve as pro-bono outside counsel on the case.

If the January 6 hearings have taught us anything so far, it’s that we all—including state attorneys general—should follow the money. This week, we heard evidence that Trump and his allies may have swindled their own supporters, raising $250 million on alleged lies to donors in the wake of the 2020 election. This “big rip-off” s not only deeply upsetting to anyone affected, but also potentially illegal.

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As the top prosecutors in their states , attorneys general can hold organizations and people accountable when they lie to take money from people. In 2021, the Michigan State Senate recommended Michigan Attorney General Dana Nessel investigate those who have pushed false election claims to raise money or publicity and her office has confirmed they are on it. On Wednesday, New York Attorney General Letitia James hinted that she may investigate the $250 million Trump raised. Given the scope of alleged grift, we expect to see more focus on the money and potentially other state and local leaders seeking relief for constituents affected.

Democracy cannot exist without the rule of law. Seeking accountability for those who step outside those bounds is critical to stopping the ongoing insurrection before it’s too late. If we want to prevent an election hijack in 2022 and 2024, it’s going to take a full-speed ahead approach to accountability. And just like with our elections, we believe those will be run and led by the states.

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