Q&A With Senior January 6th Prosecutor Sonia Mittal
We discuss the increasingly critical gap between the current practice of law and the reality of democratic erosion – and what can be done about it
This post is an interview with Sonia Mittal, who worked as a senior January 6 prosecutor and now co-leads a rule of law clinic at Yale Law School. Sonia was also a classmate of mine at Stanford University, where we both studied political science (and for a time shared an office). She pursued a JD as well, uniquely positioning her to understand the overlapping but often isolated worlds of legal practice and the study of political order and democracy. Bridging the gap between those two things is what motivates this post. Lawyers on the frontlines of crafting and defending the rule of law in courts and legislative bodies like Congress are in fact rarely in conversation with scholars who study democracy and the institutions of government. That is a glaring problem given the rising threat to American democracy and the fact that playing (and litigating) according to the prior rules of the game is increasingly missing the mark. So I asked her to reflect on that given her experience, and she also shot some questions back at me as someone who studies democracy and dictatorship around the globe.
1. What was your path to becoming a January 6th prosecutor and what have you been working on since?
First, Mike I want to say how wonderful it is to be speaking and writing with you. It is an important time for the rule of law here in the United States and abroad. Lawyers need to be in sustained dialogue with experts on democracy and authoritarianism like yourself.
I currently serve as a Clinical Lecturer in Law and Associate Research Scholar at Yale Law School, where I co-teach the Peter Gruber Rule of Law Clinic with Harold Hongju Koh and Bruce Swartz. The Rule of Law Clinic conducts and supports litigation, advocacy, and public awareness at the local, state, national, and international level about rule of law threats. We have been active in litigation involving the Trump Administration’s attempted dismantlement of parts of the Consumer Finance Protection Board, its proposed bar on international students studying at Harvard University, and cases involving Perkins Coie and other law firms challenging recent executive orders, among other things.
My professional path is one that I could have never imagined, but also one that reflects my deep love for this country. My parents immigrated to the United States, and growing up, my family spent many of our vacations on the road. On these road trips, I found myself constantly asking myself the same basic question–how does this country work? Why is it that we can cover distances here that would be unimaginable in some other countries? Why aren’t we at each other’s throats all the time given our differences? This question inspired my interest in American history, which in turned drove me to complete my PhD in political science (with you!). Even as a political scientist, my work on constitutional stability and failure (and what I call self-enforcing or self-stabilizing constitutions) ultimately boiled down to the same question–how does this country work?
I knew early on that I wanted to apply this background, and I decided to go to law school. There, principally through internships, I learned how central the Department of Justice was to so many of the questions that I studied as a political scientist. I joined the Department through the Attorney General’s Honors Program and served as a federal prosecutor investigating complex white-collar crimes. For instance, I brought the first criminal charges in the Department’s recent price-fixing investigation of generic pharmaceutical manufacturers. After a few years, I decided I wanted to continue to develop my litigation skills further and clerked for two extraordinary judges–Judge Denise Cote in the Southern District of New York and Chief Judge Robert Katzmann in the Second Circuit. Chief Judge Katzmann holds the distinction of being the only federal judge to have completed a doctorate in political science. Like much of America, I watched the events of January 6, 2021, unfold on the news and I joined thousands of colleagues in law enforcement in responding.
2. What’s your understanding of what happened on January 6th, 2021, with the attack on the US Capitol?
To my mind, what actually happened on January 6, 2021 at a general level is not really in dispute. Former U.S. Attorney for the District of Columbia Matt Graves called the crimes committed on January 6 “the most recorded crimes in all our history.” That day’s crimes were documented in enormous amounts of surveillance video and third-party video, often including video taken by defendants themselves. Federal courts have also been uniform in their characterization of their events of that day as a violent attempt to interrupt the peaceful transfer of power. As Justice Jackson put it, “the peaceful transfer of power is a fundamental democratic norm, and those who attempted to disrupt it in this way inflicted a deep wound of this nation.” The United States Court of Appeals for the D.C. Circuit noted that the day’s events “no doubt endanger[ed] our democratic processes and temporarily derail[ed] Congress’s constitutional work.” Individuals were charged with more or less serious crimes depending on their conduct that day, but the district courts that heard the nearly 1,600 cases agreed on the basic contours of what happened. Judge Nichols, who incidentally was nominated to serve as a federal judge by President Trump, perhaps put it best by saying: “January 6th wasn’t an ordinary violent riot but one that interfered with the counting of electoral votes and the peaceful transition of power, which is one of the bedrocks of our democracy.”
3. What was your role in the January 6th prosecutions and what work are you most proud of?
I served as an Assistant United States Attorney and the Senior Counsel in the section of the Department of Justice that handled the vast majority of criminal cases arising out of January 6, 2021. In those roles, I tried individual cases including that of Michael Sparks, the first rioter to enter the Capitol on January 6. The Chief of the Capitol Siege Section recently suggested that the government’s consistent approach to nearly 1,600 cases was perhaps its largest success. There was no precedent for handling so many cases simultaneously. From a personal perspective, I am most proud of my ability to apply the insights I learned as a political scientist studying democratic failure in the context of a real and unprecedented challenge to our constitutional system of government. It was a real “full-circle” moment for me.
4. The Trump administration issued blanket pardons to January 6th participants and then went after the prosecutors. You argue in a recent essay that the Trump administration’s attacks on January 6th prosecutors are not just isolated instances of retaliation but instead represent an attempt to “capture the referees” of democracy. Why do you think that’s the case?
The recent attacks on the January 6 team bear little resemblance to routine shifts of enforcement priorities or personnel changes. As I describe at length in my Essay in the Stanford Law Review Online, January 6 prosecutors have been subject to unusual and credible threats of investigation, demotion, firing, financial strain, and violence. The invective coming from the executive branch and directed at this team, comprised of career prosecutors drawn from all over this country, is stunning–particularly given the team’s successful record in court. Federal judges nominated by presidents of both parties heard approximately 260 trials of January 6 defendants, and only two defendants were fully acquitted. That is an extraordinary record.
5. How do you think about this instance of a prosecutorial purge within the broader context of the Trump administration’s attacks on the legal field, the judicial branch, and legal precedents? Is there something like a concerted strategy with these attacks, and if so, what is it? Or are they more piecemeal, with specific partisan or self-interested aims?
In recent pieces in Just Security and elsewhere, my colleagues Harold Hongju Koh and Bruce Swartz argue that the Trump Administration’s executive orders targeting law firms, universities, and other civil society institutions such as nonprofits are part of a sustained retaliatory campaign or “campaign of attainder.” The basic constitutional problem is that the executive orders impose punishment by fiat, without any due process or judicial review. The firings and demotions of career prosecutors are similar in that they appear to punish certain prosecutors associated with disfavored cases without cause.
6. You suggest some ways that existing legal institutions and scholars can work to “resist the capture” of career prosecutors as among the important referees of democracy. Can you elaborate on that?
I think the first step is to recognize that “capture” of law enforcement is a potential problem in the United States. We’re not used to thinking in these terms. We need to begin by familiarizing ourselves with attempts to capture law enforcement in other countries.
Second, we need to pull together and critically assess evidence of capture in the United States. We need to look at overall levels of attrition across federal law enforcement. And we need to understand whether and how firings of career prosecutors affect the independence of those who remain. As one recently fired career prosecutor put it, “[i]f a career prosecutor can be fired without reason, fear may seep into the decisions of those who remain.” Given the extraordinary power prosecutors have to initiate criminal investigations, this should be of concern to all Americans. As my former January 6 colleague Mike Gordon noted in a recent interview: “I hear from my former colleagues that they’re all now wondering, who’s next, am I next? So now, you have a situation where prosecutors, as they get cases, are not only thinking to themselves. . . what is the evidence, what is the law, and where does that lead? But now also have to think to themselves, what’s the president gonna think of this case? And that is a world we should all be scared to live in . . . because it shouldn’t matter who is sitting in the oval office.”
Finally, nonpartisan civil society institutions from universities to non-profits have an important role in supporting the rule of law by educating citizens about the possibility of capture, assembling and assessing the strength of evidence of capture in the United States, and by convening experts and proposing reforms.
And here are Sonia’s questions back at me.
1. What do you wish lawyers on the front lines of rule of law challenges in the United States better understood?
First and foremost, that the actions of the Trump administration that undermine the rule of law in specific cases are in fact connected across different domains and amount to a broader, more systematic attack on the foundations of our democracy. Take litigation to weaken the power of federal courts to review executive actions or slow-walk the enforcement of unfavorable judicial decisions (for instance, over the illegal deportation of immigrants) or pursue maximalist aims or positions in court cases with the implicit threat of noncompliance if there is no movement in the president’s direction. All of that serves to undermine the courts and the rule of law. Democracy is also threatened when the executive snatches traditional Congressional powers like oversight on federal spending or singles out companies or universities or individuals with punitive threats if they don’t do something that fits the president’s agenda. Now, all of this is happening simultaneously. Addressing individual cases often misses the relevance of the broader context. That context should be considered and incorporated to a much greater degree if the rule of law as a whole is to be left standing.
I also think that lawyers involved in litigating on rule of law issues should look to–and learn from–episodes of democratic erosion in other countries. There are common paths to democratic backsliding that are being or have been repeated across the globe in places like Brazil, India, Hungary, Mexico, Poland, Turkey, and elsewhere. Those episodes involve weakening the independence of the judiciary, attacking the mainstream media and disseminating disinformation, selectively prosecuting political foes in a way that weakens them and instills and atmosphere of fear and silence, undermining the independence of the civil service, and more. We see aspects of all of that in the United States. The risk is that by treating individual transgressions in the light of established prior law, it misses the forest for the trees. It also neglects the unprecedented nature of many modern threats to democracy that were not envisioned within the framework of prior law. And it fails to reckon with the fact that the law itself can be a political weapon. Threatening opponents with expensive and time-intensive lawsuits and constantly conducting policy on a provisional basis while its legality is being litigated in court puts the offender in the driver’s seat.
2. I see a real disconnect between the information that scholars like you have and the information that many lawyers like me need. What can we do to bridge that gap?
One obvious way is to have more dialogues like these! But to bridge the gap in a meaningful and sustained way, there needs to be ongoing conversation and interchange–and even training–between the legal profession and those who study political systems. And to be clear, that is a two-way street. While we’ve talked about what lawyers are missing in not sufficiently understanding the broader political picture, it’s also true that most scholars of democracy and political systems (myself included!) lack legal training and understanding about specific statutes and the details of how civil and criminal litigation unfolds. That makes it hard for those scholars to know how to apply their knowledge to the minutia of high-profile legal cases that are being argued on the “merits.” I imagine that is part of that you have in mind at the rule of law clinic that you co-direct. And I look forward to seeing what comes out of it!
3. Are there any resources you recommend for lawyers looking to learn more about the erosion of the rule of law in other countries or from the perspective of political scientists?
For starters, it’s crucial to understand how the rule of law–and democracy itself–can fray in the contemporary world. For some insights into what that looks like and how it happens, I’d suggest some of these works for an introduction (I’ve also written a prior post on it here):
Nancy Bermeo, “On Democratic Backsliding” (Journal of Democracy, 2016).
Steven Levitsky and Daniel Ziblatt, How Democracies Die (Broadway Books, 2018).
Michael Albertus and Guy Grossman, “The Americas: When do voters support power grabs?” (Journal of Democracy, 2021).
Dan Slater, “Democratic Careening” (World Politics, 2013).
It’s also worthwhile exploring how social scientists identify and quantify erosion of the rule of law and democracy. Some of the most approachable, but still very rigorous, sources out there include the Varieties of Democracy project and the Democracy Erosion Consortium.
Leading image is of the January 6th riots at the US Capitol (via Wikimedia Commons, CC License 2.0).