The House Select Committee to Investigate the January 6 Attack on the United States Capitol (“Committee”) has completed the first phase of its hearings. What to make of it so far?
The Committee has an important mission and the potential to accomplish it
The January 6 attack on the Capitol was a national disgrace on many levels and must never be allowed to happen again. It is essential to understand as fully as possible how it happened, hold those responsible accountable, and develop countermeasures to prevent a recurrence. While much about January 6 is already painfully familiar, other aspects require more attention. The real possibility of similar attacks and even broader assaults on our electoral processes in the future is particularly concerning. One highly respected (and solidly conservative) former federal judge went so far as to assert that January 6 was a dress rehearsal for future elections.
Therefore, it is wrong to view further inquiries into the events of January 6 as just a rehash of known facts and a distraction from more urgent issues facing the country. “Whataboutism” arguments that other riots such as those following the George Floyd murder do not face comparable scrutiny (e.g., here and here) are likewise unpersuasive. While the former may well deserve more attention than they receive, they do not pose a direct threat to our democracy. In any event, neglecting one set of riots hardly provides a rationale for neglecting another.
If it downplays politics, the Committee could accomplish a great deal. Given how its membership came about (see below), it lacks the adversarial makeup that turns most congressional inquiries on controversial subjects into chaotic circus-like events. The Committee also uses atypical procedures (e.g., a limited number of members participating in each hearing) that avoid the disjointed cacophony, grandstanding, and bloviating that characterize most congressional hearings. Aided by a seasoned TV professional, its highly choreographed hearings make effective use of video excerpts from depositions and other sources. The result of all this is a series of made for TV-type documentaries with well-developed themes that allow the Committee to get its message across through coherent narratives.
Complaints that the Committee is overly partisan or unfair are (thus far) unfounded
Naturally, Democrats hope to gain politically from the Committee’s work. However, it is utterly disingenuous for Republicans to write off the Committee as merely political. Democrats initially proposed to investigate the events of January 6 through an independent, bipartisan body along the lines of the 9/11 Commission. This would have been a better option but Senate Republicans blocked the proposal, leaving a congressional committee as the only alternative. Then, after political maneuvers by the leaders of both parties in the House, Republican Leader McCarthy refused to submit any nominees for membership on the Committee.
Republicans complain that Speaker Pelosi’s appointment of two GOP members, including Liz Chaney as vice chair, does not make the Committee bipartisan because they are Trump critics. However, Cheney is a solid conservative and former member of the House GOP leadership. She fails to qualify as a bona fide Republican only if the Republican Party is nothing more than the cult of Trump. (Sadly, this may still be the case.) Moreover, the Committee’s hearings have not been notably partisan so far. On the contrary, they rely heavily on Republicans, including many former Trump loyalists, to lay out a narrative of his direct knowledge and conduct that is objectively incontestable in large part. Of course, things may go downhill. Some of the Committee’s behind-the-scenes activities are politically suspect, and it may overreach provable facts and reasonable conclusions as it moves forward.
Complaints that Trump has no one to defend him ring particularly hollow. As noted above, pro-Trump Republicans in Congress forfeited their opportunity to participate. Trump and his remaining loyalists refuse to engage with the Committee. Anyway, the case against Trump is so overwhelming that it’s unclear what could persuasively be offered on his behalf as long as the Committee sticks with provable facts and reasonable conclusions. Perhaps an insanity defense if one thinks Trump was delusional enough to actually believe what he said?
The Committee hearings confirm Trump’s reprehensible behavior, but will it matter?
If there was any lingering question concerning Trump’s unfitness for public office, the Committee has skillfully dispelled it mainly through the testimony of Republican witnesses. The hearings establish beyond reasonable doubt that Trump’s stolen election claims were patently false—indeed, wholly evidence free–and that this was repeatedly made known to him. The hearings also lay out Trump’s outrageous efforts to overturn the election result by, among other means, pressuring Vice President Pence to take unconstitutional action and urging state officials to alter their vote counts. And they document his irresponsible behavior directly related to the January 6 riot. Trump’s conduct in all these respects was clearly impeachable and would have justified his conviction and removal had he not already left office. Some of his actions may be criminal as well, although this remains to be seen.
Early polling suggests, however, that the Committee’s work may have little impact on public opinion. Evidently only about one third of Americans are paying attention, and among them opinions remain polarized. Polls consistently show that about 70 percent of Republican voters still believe Trump won the 2020 election. Nor does it appear that the hearings have affected Trump’s standing among Republican politicians, although some modest cracks may be developing. While surely knowing better, most still condone Trump either by their silence or (distressingly) by continuing to embrace his lies. As Rep. Cheney aptly observed, “to my Republican colleagues who are defending the indefensible: There will come a day when Donald Trump is gone, but your dishonor will remain.”
Although Trump is the main villain of January 6, the Committee should avoid a myopic focus on him
The Committee’s singular focus on Trump, while understandable, probably is not its most fruitful line of inquiry. In typical Trump fashion, his reprehensible behavior before, during, and after January 6 was largely open and notorious. It has been the subject of extensive media coverage and his second impeachment. The Committee is doing an excellent job of pulling the known facts together and adding detail. However, it has offered nothing fundamentally new about his role, and what it has produced may be mainly preaching to the choir. (If the Committee had a “bombshell” revelation, it surely would have unveiled it in the initial prime time hearing.) Moreover, obsessing over Trump diverts attention from the following subjects on which the Committee could make a greater contribution and risks having many write off its work as political theater.
The Committee should explore the monumental intelligence and security failures that allowed a ragtag mob to take over the U.S. Capitol
Based on information now available, it appears that January 6 rioters were largely unorganized. Some committed violent acts when entering the Capitol and thereafter. Most, however, seemingly wandered the Capitol aimlessly, taking selfies, occasionally committing minor acts of theft or vandalism, and generally looking and acting more like jackasses than terrorists. While some moronically chanted “hang Mike Pence,” there was no serious attempt to attack him. (Had such an attack occurred, his heavily armed Secret Service detail surely would have dispatched it.) How a mob like this managed to successfully invade the United States Capitol, and with relative ease, is a scandal in itself.
While many individual police officers responded heroically, their leadership utterly failed to prepare for or effectively respond to the events of January 6. Explanations thus far by law enforcement and military agencies feature more obfuscation and finger pointing than enlightenment. While the profound law enforcement failures of January 6 have received some congressional attention, they deserve much more. This is a less politicized area and one where the Committee probably could contribute more than on the Trump-related issues. Of course, there are pitfalls here too. Congress is responsible for the Capitol Police and several other agencies involved in January 6; therefore, it might have trouble dealing with these issues objectively.
The Electoral Count Act needs the Committee’s attention
The many ambiguities in the Electoral Count Act of 1887 (ECA) create pitfalls for the integrity of presidential elections and have prompted calls across the political spectrum to revise it. (See, for example, here, here, and here.) Some contend that the law is unconstitutional and should be repealed outright. The ECA was one source for the specious argument that Vice President Pence could decide what electoral votes to count. The law also makes it very easy for members of Congress to challenge electoral votes by requiring only one Representative supported by one Senator. This has led to frivolous challenges to state electoral vote submissions from time to time, usually offered only as political posturing. (Ironically, January 6 Committee Chairman Thompson and Committee member Jamie Raskin have done this.) Taking things to an entirely new level, 147 unscrupulous GOP members of Congress—137 House members supported by eight Senators—objected to 2020 state electoral vote submissions based on Trump’s lies. Still another problem with the ECA is its vagueness concerning the appropriate grounds for a challenge.
The January 6 Committee lacks legislative jurisdiction over the ECA. However, it could and should explore the problems with the ECA relating to the 2020 election and develop recommendations to share with the congressional committees of jurisdiction. One complication to consider: The danger in 2020 (and prior years) was congressional abuse of the ECA in order to overturn legitimate electoral vote submissions by the states. The situation may be different 2024. Trump allies have been seeking greater influence in some states over how votes are tabulated. This introduces the possibility that there may be a need for the ECA or another federal mechanism to deal in the future with the reverse problem—illegitimate state submissions.