Annie Kuo Becker: Welcome to Discovery, a podcast where we interview the 红桃视频's distinguished faculty and guests to the law school who are legal experts from around the world. I'm your host, Annie Kuo Becker, and I have the pleasure of welcoming to the podcast today our guest, Timothy Heaphy, who served as chief investigative counsel for the House Select Committee to investigate the January 6 attack on the U.S. Capitol.
He previously served as U.S. Attorney for the Western District of Virginia and is currently a partner and co-chair of the investigations and enforcement practice at Willkie Farr & Gallagher. In 2017, he authored a report commissioned by the city of Charlottesville on the city's handling of the events surrounding the 鈥淯nite the Right鈥 rally on August 11 and 12th, 2017. Welcome, Tim. Thanks so much for being with us.
Tim Heaphy: Thanks, Annie. Appreciate it.
AKB: Tim, when you came to the law school in January to speak with our faculty, your book was literally hot off the press. For our listeners, Tim Heaphy wrote a book called Harbingers: What January 6 and Charlottesville Reveal About Rising Threats to American Democracy. How's the book tour and the reception going from your vantage point, not quite six months into the current administration?
TH: It's been going great, Annie. Thank you. And the issues discussed really continue to be directly relevant. There's a lot of discussion about the state of our democracy with the administration and a lot of the aggressive actions it is taking. So, while the book was written prior to the election, a lot of the themes developed, I think, are only more relevant as we move forward into the new administration. So, it's been a lot of fun. I've been all over the country talking about the book. I have a bunch more events on the calendar. It's always great to engage with people that care about these important issues.
AKB: And that's a critical point that the book was written before the election. But it's also a record, like a time capsule or snapshot of the sentiments in our country, that fueled Donald J. Trump's return to the presidency. Even after all the reports on the Charlottesville riot and the January 6 insurrection 鈥 you know, the investigative of which you helped lead 鈥 why did you feel led to write this book?
TH: As you said, Annie, I led these two investigations of these seminal events in recent American history and I just see a lot of parallels between them, and I felt like I had this unique vantage point to bring them into common context and draw those direct parallels. The city of Charlottesville hired me to do an independent review of how my own client, the city, managed the racist protests in 2017 and then I led the House of Representatives investigation into the January 6 attack, and I just saw, all the way through the January 6 matter, lots and lots of parallels with what I had learned in Charlottesville. And that was really the impetus of the book, was to put them together. And I didn't just want the book to be a recitation of the facts. I wanted to zoom out from those facts to drive some broader lessons about where we are as a country.
So, the first part of the book kind of draws the connections between the events, and then the second part talks about what they reveal about where we are as a democracy, and then offers some thoughts about the way forward.
AKB: Yeah, and I definitely want to get into not only the historical context that lead up to those reports and your gathering of evidence, the testimony and interviews with the participants, the planners and witnesses, as well as the descriptions of interactions with lawmakers, law enforcement and generally, the whole scope and operations of the investigations from the onset.
I'm wondering the way the book is organized 鈥 we've got a chapter on Charlottesville, a chapter on January 6, and then a whole chapter on social media, a whole chapter on law enforcement and division in our country. Did you decide to organize the book that way because of the common themes that you saw between the two events?
TH: Yes, exactly. One of the big commonalities was real failure of institutions of law enforcement to protect public safety at both events, that was an obvious parallel. The way the events were organized, and the way more and more people who were at the events got their information in this country via social media, was another parallel. And they both revealed what I think is the core divide in this country, Annie, now, which is no longer kind of left versus right, liberal versus conservative, but rather those who believe in institutions and then those who just don't, who don't believe government or mainstream media or higher education really work in their interest.
In my view, both Charlottesville and the attack on the Capitol were spasms of anger at institutions, and that's a broader and deeper sentiment in this country that transcends politics. And I wanted to, kind of, draw those connections before I started talking about remedies. So, that's why the book is organized as it is.
AKB: You just mentioned the word anger, and anger and apathy are two very different reactions to the cynicism that pervades the state of our democracy today. Both the 2017 and 2021 events, plus the decisions made at the polls in November 2024 they reflect this growing lack of trust among Americans in long-standing institutions. And you've got this chapter 鈥淚t's harder to hate up close,鈥 where you're quoting Michelle Obama, where you describe these different reactions to the cynicism problem about our institutions. So, from your understanding about the state of American democracy, how is apathy actually more concerning than anger? And then a second piece of this question is, how are they actually related to each other in a cycle that can be destructive?
TH: Yeah. So, they're definitely related, and I do think apathy is more dangerous. So, look again, a lot of people in this country have lost faith in government. Have lost faith in a lot of institutions, and that can manifest in lots of different ways. What we saw in Charlottesville and what we saw at the Capitol was that anger leading people to commit acts of violence.
In Charlottesville, it was violence 鈥 interpersonal violence 鈥 against those on either side of that event, sort of demonizing the each other. At the Capitol, it was anger manifested at the institution, the building itself, and the joint session that was taking place inside. So, one reaction to believing that government or other institutions are broken is to get mad. But I fear that, more and more, a lot of other people have a different reaction to that same core feeling of cynicism, and that's apathy. They just they stop caring, they stop participating, they stop educating themselves, they stop reaching out to find common purpose with their neighbors and the people in their lives. They stop voting. And to me, Annie, that is ultimately a bigger threat to democracy than anger. We can manage anger. And I hope that some of the lessons learned from Charlottesville, January 6 聽and the ongoing work of law enforcement to, kind of, protect us, will lead us to be more successful. And we have historically been successful at, sort of, quelling anger and protecting people. But apathy is harder to fight. In the 2024 election, about two thirds of registered voters went to the polls, and that doesn't even include a large number of Americans who were eligible to register to vote who did not.
So, when people sit out the process and do not exercise the right to vote, or other engagements in civic life, then we're giving out sized power to people that may not have the common good in mind. And I fear that in an age of a polarization, division, that more and more people are getting apathetic, and the book is sort of a call to participate, a call to engage 鈥 an argument as to why it's important not to let yourself fall prey to that apathy.
AKB: There's more ways to participate in democracy than just voting, right? So, I love some of the suggestions you have toward the end of the book that are very forward-looking and hope-giving. Now, I'm curious, what surprised you the most about all the events you were in charge of investigating? You've amassed so much evidence and testimony and saw a lot from that point of view. There's probably more than one thing that surprised you, but can you identify a couple?
TH: A lot. The thing about the January 6 attack on the Capitol that surprised me the most was, frankly, how close it came to being successful. You know, I kind of went into the investigation thinking, yeah, you know, it was a hard day, but our institutions are durable, and our public safety apparatus and our and our norms and our laws held. And while that's true, it was really the courageous actions of a handful of people tasked with upholding those norms and standards and rules that saved democracy. And it shows me that democracy really comes down to people, people acting in good faith, people like Vice President Pence, you know, who resisted strong pressure from the president and ultimately an angry mob that the president launched at the joint session to put the Constitution and his fidelity to purpose over his political self-interest.
And state officials around the country. Republican office holders who counted and recounted ballots and said the results favor President-elect Biden and we are not going to subvert the rule of law because we're disappointed in the outcomes. So, there are lots and lots of people who stood up and did the right thing, and that is really a huge lesson learned because that is what it takes. And that also sets up my advice, which is democracy comes down to all of us. It isn't some external force or somebody else is going to protect it. We have to protect it ourselves. So, it really does come down to people.
AKB: There are folks that participated in both events, certainly those who were fueled by hate 聽in terms of the racist riot, but also some folks who thought they were doing the right thing, and their trips to the Capitol, for example, were charged by misinformation that they got from social media.
I thought your chapter on social media was fascinating in terms of how social media played a role, a central role, in spreading misinformation about the 2020 election, and also played a role in organizing and recruiting participants. You identify this lack of content moderation by social media platforms as a huge culprit in the proliferation of misinformation, and it's protected by Section 230. There's currently legislative bills trying to repeal the protections that these social media platforms enjoy. But you also note that Congress could also require more transparency about algorithms and how information that reaches people is generated. I'm a mother, and I think about the children, which you also mentioned in the book starting with the kids, like teaching them critical thinking about how they are receiving information on the internet. Could we spend a few moments addressing this issue and how it affected people who later regretted their participation on January 6?
TH: Yeah, sure, Annie. There is a whole chapter in the book about this. The best way to sort of characterize the information ecosystem that I think we're dealing with in this country is by way of illustration. The story I tell in the book is that of Steven Ayres. Stephen was a witness in one of the Select Committee hearings that we held over the summer of 鈥22. He's a perfect example of how more and more people in this country receive and process information. He was a carpenter in Erie, Pennsylvania. He was a Trump supporter. He was surprised when President Trump lost the election, so he started reading about the election on Facebook. That was his social media platform of choice, and based on what he read through his algorithm-driven feed, he was given more and more information 鈥 frankly, more and more misinformation about the election because the way the algorithms work, they're designed to capture the attention of a user and to maintain the user's interest and keep him or her scrolling on the platform.
So, Stephen Ayres is fed a lot of misinformation. Pretty soon, he's asked to join an affinity group because his interests are similar to others. He then meets people through this affinity group, some of whom are going to Washington for this Trump rally on January 6. He goes to meet them in Washington. He then finds himself, you know, marching down Pennsylvania Avenue and going into the Capitol based on the false belief, the sincere but false belief, fueled by his consumption of social media that the election had been stolen.
Social media platforms are businesses, and they're not doing anything wrong or illegal. They're maximizing value for shareholders by keeping people engaged, but they don't have a legal obligation and do very little content moderation. They do not flag patently false information. The only information that they'll take down is sort of extreme violence or child exploitation or things we can all agree beyond the pale shouldn't be out there on these platforms. But when it comes to assertions about the election or about the COVID vaccine or any number of other issues, they are not routinely saying this is true, this is false, and that allows 鈥 that, and the algorithms 鈥 these people to go down these rabbit holes of misinformation.
Now in the book, there are some sort of supply side things we could change, like section 230. Section 230 essentially, is a matter of law that indicates social media platforms are not news organizations like the New York Times or ABC News. If the New York Times puts something in its newspaper that's false, it could be sued for defamation. Social media platforms are viewed under Section 230 of the Communications Act as essentially bulletin boards where the people that are posting content are held to the standard of veracity, not the bulletin board. So, we could change that. If we did, it would result in a lot of content moderation and a lot of things, frankly, that are protected speech that would not be available. And there's a risk that the remedy would be over inclusive and deprived people of a lot of information that in the marketplace of ideas might be useful or conversation provoking.
We could also require transparency. The social media platforms zealously guard these algorithms as trade secrets. They could be forced to provide more information to consumers about how its information is promoted through the feed. We could also reduce or eliminate the use of these sort of bot accounts, or fake accounts. This is hard to do as a practical matter, but so many of the algorithms are sort of fed by these fake accounts that are meant to influence the algorithm and drive more misinformation to particular audiences, and some sort of restriction on those accounts might be helpful.
But ultimately, Annie, as a parent, you understand this. I think it's really the demand side solutions that we really can and should focus on right away. We have to help our kids understand how the platforms work. Help them be critical thinkers, challenge orthodoxy, expose themselves to contrary views, help them navigate this new social media-driven information ecosystem so that they are not like Steven Ayres, blindly following along these rabbit holes of misinformation. But are sifting what they are getting and reaching out to different sources. So, my focus really would be on all of us educating ourselves and being educated consumers in this information marketplace, but particularly our kids, helping them be critical thinkers and get access to information that will ensure that they get a balanced approach.
AKB: Absolutely, and since the kids are so influenced by the internet these days, addressing that piece is so critical for avoiding similar episodes of political violence in the years ahead for the future generations.
Could we briefly discuss some of the solutions that you proposed for the law enforcement debacles that happened, which you expressed deep respect for law enforcement, but you identified the problems lay more on the planning level for both of the events.
TH: Yeah, I've worked in law enforcement and worked with men and women who wear the uniform at all levels my whole career, and have immense respect for them. That said, Charlottesville, January 6, were real failures of law enforcement. And then there are a lot of reasons for that. First of all, Annie, there were intelligence and resource failures. Plenty of information in advance of both events suggested violence. Plenty of bodies, different agencies, prepared to send people to these events. So, it was not, hey, we didn't have enough people, or we had no idea what was coming. It was a disconnect between the information and a misalignment of the bodies to adequately address the threat at the events.
The reasons for that are pretty simple. One, all of the apparatus of institutional law enforcement is really siloed. We don't do a good enough job sharing information between agencies. So, at the Capitol, what the Secret Service knew wasn't necessarily shared with what the Metropolitan Police or the Capitol police or the FBI, right? We had informal attempts to share information, but we don't yet do a good enough job synthesizing and aggregating intelligence.
The FBI, in my view, puts onerous restrictions on their ability to do anything with protected speech, open-source information. So, if an agent is scrolling Facebook and sees someone post a photograph of himself with an AK 47 saying, 鈥淛anuary 6 is like 1776. See you in Washington.鈥 That is insufficiently specific or credible for them to open a preliminary investigation. And if they don't open a preliminary investigation, they don't do anything with the information. It doesn't get aggregated, cataloged. They don't do anything prophylactic, like go knock on that person's door and say, 鈥淪ir, I see you posted this picture. What are your intentions?鈥 Because of concern for chilling protected speech and free association, if it's in the category of just stuff that they perceive because it's out there, open source, they put real restrictions on their ability to do anything with that. I think too many restrictions. They're not imposed by law. This is FBI policy.
And then the last thing Annie is race. We continue to misassess danger, in my view, in this country based on the race of the people who present that perceived danger. The essence of law enforcement is the assessment of danger, whether it's an officer making a decision to stop a vehicle because of a perceived threat, or an organization evaluating intelligence, that is the assessment of danger. And that's a very subjective process. And in my view, in that subjective process, we misassess danger, minimizing it when it comes from middle-aged white guys who are perceived to be pro-police, like the crowd in Charlottesville and at the Capitol. We don't seem to get that they're serious in this intent to commit acts of violence. And then we overestimate danger when it comes from Black and brown protesters. You look at the summer of 2020, and the very different level of organizational response 鈥 heavier, more riot gear, more aggressive posturing. I want to make the point here that it's implicit. You know, I didn't meet officers at the Capitol or in Charlottesville who were sympathetic to the rioters. They were frustrated at their planners or operational plan. So, I don't think we have a lot of explicit bias in law enforcement, but we have a lot of implicit bias, and we should talk about that. We should flag this issue, and we should do what we can to try to counteract it. Like all these things, Annie, we can't fix them unless you kind of honestly and candidly recognize them as a threshold,
AKB: I definitely appreciate your calling it out for what it is that the response or planning would have looked very different had it been a horde of black men.
TH: I think so. It would have been very different at the Capitol if it were a bunch of angry black men who don't like police. We would have had a very different posture.
AKB: Yeah, that from a federal prosecutor. When we're talking about the tragedy that befell our country on these two instances, there's a lot of opportunity in tragedy. And you mentioned that this division can be met with ways to bring people together to pursue common purpose and common goals. Can we talk a little bit about the solutions in some of your later chapters? 鈥淏alloons鈥 is the name. Where do we go from here because your tone was one of measured optimism?
TH: And I remain optimistic even now because I think Annie that people who live in this country have so much more in common than things that divide them with the things that we share. The desire for our kids to go to a good school and to live in a safe neighborhood and to have the equal opportunity to pursue things that are important to us. We all share those basic core values. Even if we disagree, sometimes politically or in terms of how to achieve those goals, we all share the same raw stuff. And unfortunately, I think, over the last 50 years or so in America, we increasingly live in these silos where we don't really have much of an opportunity to talk to, learn from, interact with people who are different from us.
Some of that goes back to the social media ecosystem in which we live. Now, most of us are only getting a narrow spectrum of information that perpetuates our worldview. Some of it is economic disparities in terms of where people live and work and go to school. And some of it is the erosion of institutions that used to bring us together, like church membership or civic organizations.
So, in the book I advocate for both big picture and small picture coming together. Like big picture, I would love to see a national service program. I wouldn't make it mandatory, but if we incentivized some kind of program where recent high school graduates could spend two years either in military or civil service building trails or working in assisted living facilities in exchange for some significant benefit like tax amnesty for a period of time. Then you'd have people from different parts of this country coming together and sharing that experience of shoulder-to-shoulder service, and I think that would do a lot to, kind of, reinforce our sameness, as opposed to our difference.
And then just the bottom line advice in the book is in your own world, in your own neighborhood, in your own family, even, don't assume the worst of people who disagree with you politically. Make an effort to try to find that common ground, to learn from or understand people who are different from you. Find ways to pull together and come up close. Michelle Obama said, 鈥淚t's hard to hate up close.鈥 She describes going into rooms throughout the time of her husband's presidency where people were skeptical of her and her husband because of politics, and that when she just had conversations with them, when they talked about their kids, or they talked about the weather, then those barriers broke down. And she said, 鈥淚f Barack and I could just meet everybody in the country, we'd be fine.鈥 And I kind of believe that. If everybody in America lives in the world with that attitude, I'm going to find a way to make common cause with that guy with the Trump sign down the street, or that person who sits down the hall from me at work, who may not have voted like I do, I'm going to find a way to connect with her. Then I think we'll all be fine, because again, democracy comes down to people who are going to do the right thing.
AKB: That is very hope-giving that there's a chance that we can come back and we can learn from these events. Yeah. Thank you so much for your insight and your wisdom into the state of democracy in America from your very unique lens as lead investigative counsel on two very telling events in our recent history.
TH: Thank you, Annie. I really appreciate that, and thanks again for the invitation.
AKB: Timothy Heaphy is a partner in Willkie鈥檚 litigation department and co-chair of its compliance investigations and enforcement practice. He is based in Willkie鈥檚 Washington, DC office. His book Harbingers: What January 6 and Charlottesville Reveal About Rising Threats to American Democracy is on book stands now.
