It’s been six months since the attempted insurrection at the U.S. Capitol. Half a year later, the Justice Department is pursuing criminal charges against over 400 rioters. The Capitol Police has finally removed the last of the barriers erected to defend the building following the violence. And, in the House of Representatives, the Select Committee to Investigate the January 6th Attack on the United States Capitol is getting ready to begin its work.
The prosecutions continue to chug along, but the committee finds itself in an odd position. Created after the Senate failed to break a filibuster of legislation establishing an independent commission on Jan. 6, the select committee was nobody’s first choice—Democrats preferred the option of a 9/11 Commission-style independent body, while the majority of Republicans would rather have dropped the matter entirely. This second-best status might seem like a problem for the committee as it begins its work. Seen in another light, though, the circumstances of the select committee’s creation have freed it from the need to pull its punches in order to curate bipartisan credibility. That’s an advantage—if the committee is willing to use it.
In contrast to the independent commission, which was sold as bipartisan and would have been split down the middle between commissioners selected by Democrats and Republicans, the select committee will have a clear majority of seven Democrats plus anti-Trump Republican Rep. Liz Cheney.
Speaker of the House Nancy Pelosi’s decision to appoint Cheney means that the committee is technically bipartisan regardless of how McCarthy proceeds, but House Republicans have made their opposition clear. Committee chairman Rep. Bennie Thompson has scheduled his first hearing for July 27, and yet the committee is still missing five of its 13 members—House Minority Leader Kevin McCarthy having not yet nominated any members of his caucus to serve.
House Republican recalcitrance might seem like a problem for Thompson, Cheney and their fellow members. How can they effectively investigate and communicate the facts of what happened on Jan. 6 to a politically fractured public in the absence of good-faith participation from Cheney’s Republican colleagues?
In the months immediately following the insurrection, proponents of an independent investigatory commission pointed to the presumed bipartisanship of such a commission as a major selling point. Former New Jersey Governor Tom Kean and former Indiana Rep. Lee Hamilton—who together co-chaired the 9/11 Commission—advocated for a similar commission to address the events of Jan. 6, arguing that, “A bipartisan, independent investigation will earn credibility with the American public.” Kean and Hamilton later emphasized how their own investigation had “put country above party to examine, without bias, the events before, during, and after the [9/11] attacks,” and argued that, “As we did in the wake of September 11, it is time to set aside partisan politics and come together as Americans in common pursuit of truth and justice.”
Framed in those terms, a bipartisan commission does sound like a pretty good idea. The problem is that, in order for an investigation to be bipartisan, both parties need to be on board. This seemed possible in the first days after the Capitol riot, when congressional Republicans openly condemned the violence—even Sens. Ron Johnson and Lindsey Graham, close allies of President Trump’s, voiced support for an independent commission. But Republican resistance to an independent commission increased over time, as it became clear that Trump and his supporters would not back away from the lie that the 2020 election was stolen. When the Senate voted on the commission legislation in May, both Johnson and Graham opposed it, along with most of their Republican colleagues.
After the commission failed to make it through the Senate, Pelosi spearheaded the development of the select committee. By that point, the battle lines between the parties had been drawn. The committee was designed along a typical model for a select committee, with—a majority of members appointed by the speaker of the House—a seeming acknowledgment that the Republican Party, by and large, was not interested in investigating Jan. 6. Additionally, Pelosi retained a veto over members nominated by the minority leader.
Every Republican but Cheney and Rep. Adam Kinzinger voted against the resolution to establish the select committee. The GOP resistance to a select committee even permeated members who have otherwise been engaged in post-Jan. 6 oversight. Republican Rep. Rodney Davis—the ranking member of the House Administration Committee, which has probed the response of the Capitol Police to the insurrection—voted for the independent commission but rejected the select committee, describing the latter as “Speaker Pelosi creating a partisan circus.”
So the select committee was never going to be able to live up to Kean and Hamilton’s model of an investigation outside partisan politics. But could any investigation have done so? An independent, bipartisan probe that would allow Americans to “come together … in common pursuit of truth and justice” requires, as a precondition, that Americans of all political affiliations be capable of agreeing on what constitutes truth and justice to begin with—and that a significant minority of people don’t insist that the attack on Jan. 6 didn’t happen, or was carried out by Antifa, or was a righteous battle to save the country from perfidious deep state elites.
And attempting to conduct a bipartisan investigation in the present political climate can lead to absurdities. As Molly Reynolds and I noted, the bipartisan probe of Jan. 6 conducted by the Senate Rules and Homeland Security and Government Affairs Committees leaves out any information on Trump’s role in the violence, instead tacking on a transcript of the president’s incendiary remarks that day without any explanation or analysis. Senate Majority Leader Chuck Schumer criticized the committees’ report, saying that it “did not investigate, report on, or hardly make any reference to the actual cause, the actual impetus for the attack on Jan. 6.”
With that in mind, the fact that the select committee is a second-best option supported almost entirely by Democrats may actually be a point in its favor. Cheney and the Democratic majority on the committee won’t necessarily need to soft-pedal their investigation or negotiate compromises in order to appeal to pro-Trump Republicans. They can—if they want—aggressively pursue, with far fewer political constraints, the truth of what happened on Jan. 6.
And they will have a great deal more time to do so than the independent commission, as outlined in the House-passed bill, would have enjoyed. One of the political compromises struck in negotiating the commission legislation was the compressed timeframe: the bill gave the commission only until Dec. 31, 2021, to finish its work, far too short a period for the serious investigation the matter deserves. The select committee, on the other hand, doesn’t have an end date and would have until at least the end of this Congress—that is, the end of 2022—to complete its work.
The committee will likely need that time because there’s a lot left to investigate. To what extent were Trump and those around him aware of the danger of a riot in advance? What communications might the White House have had with various agencies before Jan. 6, and how might those have affected how those agencies handled–or didn’t handle–the crisis? What institutional flaws might have contributed to the failure of the Capitol Police and intelligence agencies to identify the soon-to-be rioters as a threat and prepare accordingly? What was the security response to the riot like on the House side of the Capitol building—a question the Senate report does not address, in part because of a lack of full cooperation from the office of the House sergeant-at-arms?
The select committee has a real opportunity to push for answers to these questions. But it will have to be willing to push for them and not fold when it encounters resistance. That doesn’t mean that the committee should be partisan in its aims or exist solely to generate talking points for the Democratic Party. Hopefully, Pelosi’s decision to appoint Cheney shows that House Democrats understand the importance of building as broad an ideological coalition as possible in investigating the riot. But the committee should take the chance to investigate aggressively and fairly–even if Trump and his supporters attack the committee’s work as a witch hunt–rather than pulling its punches in an effort to appeal to more Republicans.
This strategy also has implications for how the committee chooses to pursue requests for information. Select committee investigators are likely to encounter the same obstacles that the Senate committees ran into during their own probe—from the executive branch and, perhaps, within Congress as well. If the committee is serious about conducting an effective investigation, it’ll need to think about how to scale those obstacles, rather than backing away from them.
The Justice Department in large part refused to comply with the work of the Senate committees and, as a result, appears in their report as something of a black box. Under Attorney General Merrick Garland, the department has also shown itself to be concerned with protecting its institutional interests and preserving executive power, which could set up a clash with the House—if, for example, the committee requests documents that the Justice Department argues are protected by executive privilege. Likewise, Trump’s history of stonewalling congressional investigations suggests that the select committee will probably face resistance from Trump and his associates if it digs into Trump’s role in sparking the riot and the question of what happened at the White House on and around Jan. 6. And then there’s the question of potential intransigence from within Congress itself. Will the office of the House sergeant-at-arms be any more willing to cooperate with an investigation conducted by a House committee, rather than from the Senate? House Intelligence Committee Chairman Adam Schiff, who sits on the select committee, has said he hopes to look into the role of congressional Republicans in promoting the Stop the Steal rally—an avenue of investigation that will no doubt prove politically explosive What about investigating communications between the White House and members of Congress?
Over the last several years, the Trump administration has been remarkably effective at running out the clock when Congress sued to enforce subpoenas in civil court. As Anne Tindall and Grant Tudor write, if the select committee encounters resistance and wants to get information within a reasonable timeline in order to actually proceed with its investigation, it will need to think more creatively and aggressively about how to proceed. One option involves turning to the Justice Department to prosecute defiance of subpoenas as criminal contempt of Congress. This option was not available under the Trump administration—it’s difficult to imagine the Justice Department under Trump agreeing to prosecute current and former officials who went along with the president’s own directive to “fight all the subpoenas”—but may be more plausible under Biden. There’s also the option of revitalizing Congress’s power of inherent contempt to arrest or fine contemnors. When it comes to aspects of the investigation that touch on the inner workings of the House, the select committee has even more leverage, given that it won’t need to tangle with the executive branch in pushing for information.
These tools are available, but the committee has to want to use them—and House leadership has to be willing to back the committee’s efforts. So far, Thompson, the select committee’s chair, has given some indication that he’s willing to push for information. “There is absolutely no reluctance on my part as chair to issue the subpoena,” if necessary, he told CNN.
Politicians and commentators often describe efforts to uncover the facts behind violence or atrocity as capable of bringing about reconciliation as well as truth. In advocating an independent Jan. 6 commission, Kean and Hamilton argued that such a probe could “help our country heal.” At this point—with the majority of the Republican Party either celebrating Jan. 6 or denying that it happened at all–the idea of national healing, or of Americans coming together across political divides to understand a collective truth, is hard to take seriously. That doesn’t mean, though, that the search for facts is pointless or not worth pursuing aggressively. If the committee’s work succeeds, it can not only set out what happened on Jan. 6 and identify needed changes to law enforcement and intelligence organizations but also create a historical record about what happened that day. Truth has its own value, whether or not reconciliation comes with it. Hopefully, the select committee will recognize that.
The Jan. 6 Select Committee Isn’t Just a Formality is written by Quinta Jurecic for www.lawfareblog.com