Republicans' Campaign of Half-Truths to Discredit the House Jan. 6 Committee

They have all along refused to act in good faith to get to the bottom of Trump's role in the grim events of that day

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The House committee investigating the Jan. 6 attack on the U.S. Capitol is halfway through its public hearings. So far, the committee’s video clips and live testimony present a grim portrait of former President Donald Trump refusing to listen to his staff and advisors’ repeated message that he had unequivocally lost the election, persisting in freewheeling claims of election fraud and, disturbingly, according to Thursday’s hearings, turning a blind eye as a mob at the Capitol threatened Vice President Mike Pence for refusing to halt the certification of the 2020 presidential election.

The accuracy of that narrative will be weighed in the weeks and the months to come—Trump has himself issued a 12-page rebuttal—but the new images and testimony are a somber reminder of what a troubling and wretched day that was. This in itself is a service.

It is also an implicit rebuttal. The Jan. 6 committee has regularly been characterized by Trump loyalists as illegitimate, partisan and abusive. Whatever the truth of the criticisms, they come badly from Republicans. After all, the committee’s flaws can partly be traced to Republicans themselves. In light of their renewed push to discredit the committee in the public’s eyes, it is worth exploring this point and examining these broader accusations seriously.

Illegitimate?

In literal terms, the committee is obviously legitimate. The House, like the Senate, has direct control over its own internal business, and this authority has long included the ability to form investigative committees, as the U.S. Supreme Court has affirmed. The Jan. 6 committee was approved by a 222 to 190 House vote, a clear and undisputed majority.

That said, the only legitimate legal basis for a congressional committee’s external investigations is the legislative purpose of determining facts that help Congress “to inform itself about how existing laws function, whether new laws are necessary, and if old laws should be repealed or altered,” including “whether the executive branch is complying with its obligation to faithfully execute [the] laws.”

All of these purposes are relevant given the events of Jan. 6. Among them is not just the obvious question of the performance and possible needs of the U.S. Capitol Police, over which the House has some degree of control, but also questions of the:

• Meaning and efficacy of the Electoral Count Act, which Vice President Pence and Congress were following on Jan. 6, and which was the subject of hot debate that day.

• Executive branch’s deployment (and nondeployment) of the National Guard during the Jan. 6 disturbance.

• Executive branch’s gathering and transmission of intelligence about the possibility of violence that day.

• Value and effectiveness of federal election laws in protecting state election officials from improper pressure to alter the outcome of a federal election.

• Effects, intentional and unintentional, of the federal Insurrection Act, since it appears more than one federal official feared that stationing the National Guard at the Capitol that day might tempt President Trump to invoke the act and redeploy the Guard to prevent certification of the election.

To be clear, one can argue that these and other laws should be left unmodified, and one might even endorse some of the decisions made by federal authorities before and during that day. Such views, however, are better informed by an investigation of the day’s events.

Some argue that the House committee’s investigation is redundant given that the Department of Justice has been conducting wide-ranging criminal investigations and that the Senate has already issued a report on the Capitol’s security problems that day. But the Justice Department restricts its prosecutions to past criminality it can prove in a court of law. It does not deal with the broader policy questions that the House must explore. Similarly, the Senate report deals primarily with security policies and tactical failures in the immediate protection of the Capitol complex—just a portion of the concerns arising from that day.

Some have argued that the committee’s apparent focus on President Trump’s actions has overwhelmed the investigation’s legislative purpose. But we haven’t seen all of the committee’s work yet, and the president’s activities could well generate new legislation, just as the Senate Watergate committee’s investigation of President Richard Nixon and his staff led to a variety of new laws.

Ultimately, no matter how you describe the riot or count it’s associated deaths, Jan. 6 saw a violent, massed assault that drove America’s vice president, senators and members of the House from their chambers during the performance of a solemn duty of American democracy and delayed final recognition of the outcome of a national election for the country’s highest office. It would be an abdication for the U.S. House—part of the Constitution’s first branch of the federal government—to decline to investigate an attack on itself during the execution of a constitutionally mandated task.

Partisan?

The more relevant Republican criticism is that the committee is partisan. The initial 222-190 vote to establish the committee occurred largely along party lines, and the committee currently features seven Democrats and just two Republicans—a large disparity compared to the standard House or Senate committee.

This partisan disparity is intensified by the personal views of the members. The committee is chaired by Rep. Bennie Thompson, a Mississippi Democrat who, prior to being seated on the committee, sued former President Trump, Rudy Giuliani, and the Oath Keepers and the Proud Boys—two groups allegedly involved in the attack—for compensatory and punitive damages for conspiring “to prevent members of Congress from discharging their official duties” on Jan. 6. Though Thompson appropriately withdrew from the ongoing lawsuit before being seated on the House committee (where he could have used the committee’s public powers to aid a suit from which he might personally gain) he is joined on the committee by Maryland Democrat Jamie Raskin, who led the House’s second impeachment proceedings against Trump. The two Republicans on the committee, Vice Chair Liz Cheney and Illinois Rep. Adam Kinzinger, both voted for Trump’s second impeachment.

At the very least, the committee members’ views aren’t representative of the House as a whole, potentially affecting its credibility with Congress and the public. Equally important, a panel with less diversity of opinion will engage in fewer of the adversarial questions and discussions that produce more balanced findings.

Yet dwelling on the committee’s imbalance obscures how the Jan. 6 committee got this way and Republicans’ own role in the outcome.

In May 2021, as the Senate report was nearing publication, the expected vehicle for a fuller congressional investigation of the events of Jan. 6 was a proposed bipartisan commission of respected national figures appointed by leaders from both the Senate and the House—in effect, a committee similar to the 9-11 Commission. This bicameral proposal, which would have allowed Republicans and Democrats to appoint an equal number of commissioners, was sponsored by Thompson and Republican Rep. John Katko of New York, the two leaders on the House Homeland Security Committee. Katko reportedly believed he had House Minority Leader Kevin McCarthy’s support.

But McCarthy backed away from the plan, and once it passed the House, Senate Minority Leader Mitch McConnell backed away as well, with McConnell reportedly calling it a “slanted and unbalanced proposal” and Trump decrying it as a “trap.” This effectively killed it, leaving the House leadership to later propose its own Jan. 6 committee.

The authorization of that committee—the current committee—empowered House Speaker Nancy Pelosi to appoint the committee’s members, five of them “after consultation with the minority leader,” Kevin McCarthy. This customary language has traditionally meant the speaker would appoint the five Republicans McCarthy suggested. But when McCarthy submitted his five nominees, Pelosi took, in her words, the “unprecedented” step of rejecting two of them, Reps. Jim Jordan of Ohio and Jim Banks of Indiana, stating that her decision was based on “an insistence on the truth” and the “statements made and actions taken by these members,” both of whom had objected to electoral votes submitted for Joe Biden on Jan. 6. McCarthy, in turn, responded by pulling all five of his nominees, after which Pelosi appointed a sole additional Republican, Kinzinger, to the committee, having already appointed Cheney. 

While it’s certainly not difficult to understand Pelosi’s concerns, her breach of longstanding bipartisan House mores means part of the blame for the committee’s partisan composition is hers, and her actions will likely lead to ugly retaliations when Republicans control committee appointments in Congresses to come. Her decision also looked hypocritical: Thompson, her appointed committee chair, objected to electoral votes cast in Ohio for George W. Bush in 2004, while Raskin objected to Trump’s electoral votes in 2017.

Yet McCarthy inevitably shares responsibility for the committee’s partisan slant. Had he nominated two other Republicans (while denouncing Pelosi’s original decision), he could have placed five Republicans on the committee. This, added to Cheney, would have made the committee’s partisan tally 7-6 and given Republicans more inside knowledge of the committee’s decisions, some leverage over them, and some check on potential partisan abuses.

Instead, Republicans now denounce the committee’s partisanship in the hope that most people will be unaware of how they contributed to the problem. That may not be a bad political bet, but it’s not a particularly principled one.

Abusive?

Republicans and committee critics have further suggested that the committee is abusive in its aggressive use of subpoena powers, including those levied against private citizens, who may have fewer resources to resist a questionable subpoena, and political actors, who might be targeted simply for their political views or to settle a partisan score. One doesn’t have to be a radical civil libertarian to share these concerns, but here, too, Republican actions have fueled the problem or set precedents for it. And to some extent, the concern isn’t peculiar to the Jan. 6 committee; it’s simply inherent in Congress’s broad subpoena powers.

The Jan. 6 committee is estimated to have subpoenaed around 100 witnesses, some of them, like Steve Bannon, private individuals who were associated with former President Trump or, like Arizona GOP Chair Kelli Ward, a public official who was challenging the results of the 2020 election. Under the committee’s enabling resolution, the committee chair can issue subpoenas not just for depositions, but for data and written information, without consulting the vice chair or a vote of the committee.

This subpoena power is certainly wide-ranging, and with the Jan. 6 committee, it has included broad subpoenas of phone records and social media data. But as the official Congressional Oversight Manual observes, “In the House, the vast majority of committees now permit the committee chair to unilaterally issue a subpoena,” though “usually after giving notice to or consulting with the ranking member.” A lack of notice or consultation isn’t unheard of, though. Indeed, the Republican-dominated select committee on the 2012 attacks on U.S. facilities in Benghazi, Libya, gave the chairman a unilateral subpoena power similar to that of Rep. Thompson, the Jan. 6 committee chair. Among those the Benghazi committee subpoenaed was Sidney Blumenthal, a private individual and “confidante” of former Secretary of State Hillary Clinton, much like Bannon was for Trump.

And when the Benghazi investigation discovered Clinton’s use of a private email server for some of her official correspondence, various House Republicans issued a slew of subpoenas— over the course of a few months, according to House Democrats—to public officials and to individuals in the private sector. Similarly, the Senate Watergate Committee investigation involved probes of private political actors in President Nixon’s presidential campaign. Such inquiries simply recognize that public officials can coordinate questionable activities with private, sometimes political, actors—something the Trump White House may have done during the run-up to Jan. 6.

Of course, the Jan. 6 committee has been notably aggressive in enforcing its subpoenas, turning recalcitrant potential witnesses like former Trump White House adviser Peter Navarro over to the DOJ for criminal prosecution, rather than simply asking a court for civil enforcement of the subpoena. And there is no doubt that the committee is taking an extremely unusual step by subpoenaing five fellow members of the House, including House Minority Leader Kevin McCarthy, who was asked to discuss conversations he had with President Trump and White House staff in the week following the Jan. 6 assault. Whatever the committee’s reasons, this move is likely to fuel a longer-term partisan war among House members unless the committee can produce compelling evidence of the members’ wrongdoing. Yet again, however, such blunt-force tactics are less likely to have occurred under the original bipartisan commission proposal that Republicans rejected or under a more bipartisan Jan. 6 committee with McCarthy’s substitute nominee. The bicameral commission proposal in particular required bipartisan sign-off on subpoenas and had no provision for criminal prosecution if someone declined to testify.

A Necessary Task

Amid the volley of subpoenas and defiance, it’s easy to forget that some of those around former President Trump testified willingly to the Jan. 6 committee: Ivanka Trump, former Attorney General Bill Barr and former chief of staff to the National Security Council Keith Kellogg, among others. Seeking to understand what happened on that “raw and terrible day for everyone,” as Kellogg described Jan. 6 in his White House memoir, isn’t inherently un-Republican.

The Jan. 6 committee certainly isn’t perfect, but the Republicans’ relentless attacks on it look cynical given that some of committee’s flaws can be traced to Republican conduct itself. More fundamentally, this committee was necessary only because a Republican president with his extravagant rhetoric about a “rigged election,” amplified by a number of congressional Republicans, refused to accept the election result. In this context, attacking the committee is to ignore the beam in your own eye.

Without the refusal of President Trump and his Republican allies to gracefully accept defeat in pursuit of a greater good, Jan. 6, 2021, would probably have witnessed another manifestation of America’s great national gift: a peaceful transition of power. Instead, there are human casualties and security, legislative and constitutional challenges to meet in the months and years to come. We see now how the straightforward process of certifying a presidential election might be hijacked through lawyerly grandstanding and how political violence to change an election result is now thinkable. Forgoing a congressional investigation of these threats was never an option.

The Jan. 6 committee has a serious charge. It has undertaken an essential task. More Republicans should consider helping it, rather than obstructing it.

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