Editor’s Note: Nicole Hemmer is an associate research scholar at Columbia University with the Obama Presidency Oral History Project and the author of “Messengers of the Right: Conservative Media and the Transformation of American Politics.” She co-hosts the history podcasts “Past Present” and “This Day in Esoteric Political History” and is co-producer of the podcast “Welcome To Your Fantasy.” The views expressed in this commentary are those of the author. View more opinion on CNN.
The first federal trial for a rioter at the January 6 insurrection ended Tuesday when the jury found Guy Reffitt guilty on all five counts related to the attack on the Capitol.
His conviction marks a critical turning point not only in the prosecution of those who participated in the insurrection, but in the relationship between the US criminal justice system and far-right violence. Historically, the American legal system has rarely offered a robust, or even adequate, response to far-right lawlessness. In fact, it has often reinforced it, with white vigilantism and a racist legal system working hand-in-hand. Both an inability to see far-right extremism as a problem and a fear that juries would not convict extremists kept the federal government from aggressively pursuing these groups.
But this week’s guilty verdict – which joins a series of plea deals, bench trials and seditious conspiracy charges – shows a system with the capacity and flexibility to prosecute far-right extremism in ways it seldom has in modern US history. And while that system still has weaknesses, its ability to respond to extremism will be a critical counterweight to an emboldened far-right.
As the long delay in the recent passage of the anti-lynching law in the US Senate suggests, the American justice system has historically been reluctant to respond to far-right and vigilante violence. Since the early 20th century, legislators have pushed for federal anti-lynching legislation, only to see it fail again and again. The federal law was necessary, since all-white juries in southern states often acquitted participants in lynch mobs. But it never passed, and jury nullification remained a common way to ensure those involved in the extra-judicial murders were not held accountable.
What was true in the Jim Crow era remained true in the decades that followed. In 1979, a group comprised of members of the Ku Klux Klan and the American Nazi Party shot and killed five anti-racist protestors in Greensboro, North Carolina, who were participating in a “Death to the Klan” march. Though the murders were caught on video, in two separate trials, juries acquitted the shooters.
Nor was this simply a white southern phenomenon. Five years later, in 1984, Bernhard Goetz shot four Black teenagers on the subway in New York City, then fled the state. When he was eventually arrested, he claimed he had acted in self-defense: The teenagers had asked him for money, which he interpreted as an attempted mugging. Hailed in the press as the “subway vigilante,” Goetz escaped any serious punishment. A grand jury initially refused to indict him for anything other than a minor gun charge. As more damning evidence emerged, a new series of indictments were handed down, but the jury acquitted Goetz of all but the gun charges.
Not only was prosecuting vigilantism and right-wing extremism especially difficult, when it came to organized extremism, the federal government kept running into problems. As Kathleen Belew shows in her book “Bring the War Home,” after the government failed to successfully prosecute 14 leaders of white power groups for seditious conspiracy in the late 1980s – government lawyers argued they were stockpiling stolen arms to launch a race war – it hesitated to pursue those more complicated cases.
Instead, it focused on a lone-wolf approach, prosecuting extremism on the individual rather than organizational level. So, for instance, when the government prosecuted Timothy McVeigh and Terry Nichols for the Oklahoma City bombing, they did not attempt to expose or prosecute the broader network of extremists that had made the bombing possible, concerned they would not be able to get a conviction on one of the most important terrorism cases in US history. So, McVeigh and Nichols appeared to the American people as two lone actors, with the larger threat of far-right extremism submerged from view.
Certainly there have been extremists working in isolation, but the federal government had tied its own hands when it came to breaking apart violent far-right organizations and conspiracies. No longer pursuing difficult and time-consuming seditious conspiracy cases, which had failed in the past, the Federal Bureau of Investigation, in Belew’s words, “had institutionalized a policy to pursue only individual actors in white power violence.” As a result, not only was there no comprehensive federal response to far-right extremism, but there was no real national story about the threat such extremism posed.
Politics soon became another barrier as well, as the lines separating far-right extremists from mainstream conservatives or the Republican Party blurred, in some cases into virtual non-existence. A number of Republican lawmakers in the 1990s had ties to the militia movement, whether speaking at their conferences, defending them from investigation or welcoming them as campaign volunteers. And a shared set of anti-government conspiracies and militant rhetoric flowed through right-wing talk radio and direct-mail appeals, meaning that criticism of the far-right often hit those who considered themselves more mainstream as well.
Those connections gained national attention after the Oklahoma City bombing in 1995. When President Bill Clinton denounced the “promoters of paranoia” who had fostered an atmosphere of violent conspiracy, right-wing radio host Rush Limbaugh felt the sting. Scoffing at the idea that his program – which Clinton had not mentioned – had contributed to the violence in Oklahoma City, Limbaugh flipped the charge, arguing that those who called “people involved in legitimate political dialogue ‘extremists’” were the real promoters of paranoia.
The 9/11 terror attacks made pursuing right-wing extremists even more difficult, as the federal government’s attention and resources were now focused almost exclusively on Islamic terrorism and its suspected domestic counterparts. The image of terrorism shifted as well, away from men like Timothy McVeigh and Terry Nichols, the perpetrators of the Oklahoma City Bombing.
So when the Obama administration released a report in 2009 on the threat of right-wing extremism, it upset what seemed to be a national consensus on what real extremism looked like. The report mentioned the particular vulnerability of veterans to recruitment by far-right groups, a claim that ignited a firestorm of Republican outrage – so much, in fact, that the Department of Homeland Security retracted the report and made a public apology. In that environment, any serious investigation and prosecution of far-right extremism became increasingly difficult, and attention shifted back to terrorism abroad, particularly with the rise of ISIS.
The explosion in visible far-right organizing during the Trump era began to change those dynamics. The deadly white-power rally in Charlottesville, Virginia, in 2017 led to a series of trials, both criminal and civil, that returned convictions and millions of dollars in damages. The civil trial was particularly important, because it found the organizers of the rally responsible under state law for engaging in conspiracy (though the jury deadlocked on federal conspiracy charges).
The federal government’s approach to the January 6 insurrection has built on that prosecutorial approach. Bringing charges of seditious conspiracy against leaders of far-right organizations involved in the insurrection, the Department of Justice has returned to the prosecution of organized far-right conspiracies, rather than treating them as lone-wolf cases. That approach has met with success: A leader of the Oath Keepers, one of the groups involved in the insurrection, has pled guilty to seditious conspiracy charges. There is speculation that Reffitt’s guilty verdict could prompt plea agreements in some of the cases of hundreds of remaining January 6 defendants.
Add to that the jury conviction, and it becomes clear that something has shifted in the legal system’s ability – from investigation to trial to jury deliberation – to see violent far-right extremism for what it is: illiberal and unlawful.
While that may seem painfully obvious after the violent spectacles of the past five years, it has taken the legal system a very long time to catch up. But, however long the delay, we should be grateful that it has. As the evolution from the Charlottesville rally to the Capitol insurrection shows, far-right extremism has grown more enmeshed in Republican politics in recent years, and we will need a focused and functioning legal system to counter it.