ELI President Speaks Out on the Assault of the U.S. Capitol
The Environmental Law Institute is a bipartisan organization devoted to rule of law and effective governance in the environmental context. Last week’s insurrection and storming of the United States Capitol must be seen as nothing short of a disaster from a rule of law standpoint, attacking the institutions and mechanisms that define our system of government and tarnishing our reputation in the world as a champion for and model of democracy.
Ironically, while the road was bumpy, our system of checks and balances had in the post-election period functioned more or less as designed for purposes of resolving the various questions that had been raised about election integrity. The courts in particular played their vital role in differentiating between non-credible arguments and those supported by evidence, leading to decisive rejections of election irregularity claims. The resolution of these claims by the courts—the institution that our constitutional system relies on to resolve such questions—should have brought closure.
It of course did not. The narrative about election irregularities embraced by last week’s violent mob was informed not by what happened in the courts, but rather what was said on the courthouse steps, which often bore little resemblance to the truths that emerged in court. Indeed, in some instances, the public spin included claims not even presented in court because they were not credible enough to be brought forward without violating attorney ethics rules. This out-of-court spin was then reinforced by political leaders who either embraced it or tolerated it and gained momentum through the echo chamber of social media and sympathetic news outlets, ultimately leading to an unthinkable assault on our Capitol. The willingness on the part of so many to ignore judicial findings is a major rule of law setback, as is, more generally, the systematic and intentional use of disinformation as a tool for promoting public uptake of demonstrably false counter-narratives.
The only way to recover from a rule of law lapse is to first ensure that justice is done—justice that holds to account those who, with the apparent aim of effectuating a coup that would have disenfranchised millions of voting Americans, trespassed on Capitol grounds, rioted, assaulted police, harmed people, took lives, destroyed public property, and put members of Congress, congressional staff, and others at risk, endangering as well the democratic process itself. Justice must also be brought to those whose contrivances and calls to arms incited a riot and precipitated this act of unpatriotic extremism. Violent acts that put at risk both our ideals as a nation and the safety of our leaders and their protectors must be met with the strongest of legal responses if we are to avoid becoming a lawless—and lost—nation.
But there is much more work to be done here than that alone. The recent past has taught us that our democracy is far more vulnerable than most of us would have imagined, and the power of the presidency is considerably less constrained by checks and balances than most of us and, I believe, our nation’s founders, might have hoped. As we have learned, using communications tools brought to us by the Information Age that allow for unfiltered communications directly with large numbers of followers, the bully pulpit of the presidency can, with virtually no meaningful accountability, be used to distort the truth, punish critics and opponents, and bend the thinking of at least some followers, whipping them up to the point where so-called patriots can be summoned to commit the most unpatriotic of acts.
We need to be clear-eyed in seeing that this moment has been several years in the making. The constant fear-mongering around deep-state ghost stories, the labeling of all media criticism as fake, and the consistent discrediting of such important institutions as the courts, the FBI, and the CIA whenever they have not simply fallen in line with Administration positions, has helped cultivate an unprecedented level of suspicion of government and antipathy for its constitutional underpinnings. Unfortunately, we have every reason to expect that there will be continued use of these strategies and the use of disinformation to attack our Constitution and our nation. Continued vigilance will be required, along with law making that stems the power of disinformation and more effective use of existing enforcement tools.
The losses that we have suffered from last week’s brazen acts of trespass, assault, inciting to riot, and rioting, are incalculable. We the people need to look at the whole of this and make sure that what happened never happens again. Perhaps, the ELI formula—truly honest, reasoned debate in pursuit of sustainable, common-ground solutions that protect and advance rule of law and good governance—has something to offer about the path forward.
—Scott Fulton, January 12, 2021