Jan. 6 Committee strays from mandate to pursue prosecutions   

The House Select Committee to Investigate the January 6 Attack on the U.S. Capitol seemed to patch some previously-exposed cracks in its otherwise tightly-scripted wall of unity by a unanimous vote on Dec. 19 to approve its final report.   

In reality, the cracks were signs the committee was sitting atop a widening seismic fault that threatened to swallow it in a chasm of endless recrimination. The committee had strayed from its original mandate to determine what happened, and, more importantly, to recommend how to prevent its recurrence.  Instead, it was pursuing prosecutions it had no authority to conduct, at the expense of all else.  Criminal referrals by Congress carry no special weight with the Department of Justice. 

As I recounted in this space on June 20, the first crack in the wall appeared when committee Chairman Bennie Thompson (D-Miss.) told reporters after a hearing on June 13 that the committee would not be making criminal referrals to the Justice Department, President Trump or anyone else. Almost immediately, committee Vice Chair Liz Cheney (R-Wyo.) tweeted that the committee “had not issued a conclusion regarding criminal referrals” and would do so “at an appropriate time.”  Another committee member, Rep. Zoe Lofgren (D-Calif.) had previously indicated in March that a criminal referral would be ‘unproductive” because “it carries no legal weight.”   

The day after Thompson’s remarks, a committee spokesperson issued a clarification on his behalf, saying the committee is “tasked with developing facts,” and “has no authority to prosecute individuals.” The statement went on to indicate the committee would gather “all relevant information, offer recommendations, and, if warranted, make criminal referrals.” Other committee members chose to keep their powder dry and not weigh-in on the matter so soon.    

When Thompson made his opening statement at the committee’s final session last week, he left no question where he and his colleagues finally came down on the question: President Trump was responsible for summoning the mob to Washington on Jan. 6, 2021, for the purpose of blocking the electoral count proceedings in Congress and must be held accountable under the law for his actions.  

All subsequent “opening statements” by committee members bolstered the case being made to DoJ and the American people for holding the former president and his cohorts legally responsible for the Jan. 6 mayhem, citing four criminal statutes, including obstruction of official proceedings of Congress, conspiracy to defraud the U.S., conspiracy to make false statements, and inciting or assisting in an insurrection. 

Another crack in the wall appeared more recently when the Washington Post reported on Nov. 23 that 15 current and former committee staffers were floored when they learned that Cheney was pushing for the report to focus almost entirely on Trump and his role in fomenting the Capitol riot, leaving other investigative findings on the cutting-room floor. That concern was also reportedly shared by some committee members.  

As it turns out, their concerns were justified.  The committee’s authorizing resolution charged it, among other things, with recommending any changes in law, policies, and procedures to prevent future acts of violence and terrorism aimed at American democratic institutions, and to improve security measures at the Capitol.  However, the final report, released late last Thursday, contains eight chapters devoted almost entirely to making the criminal case against the former president and his cohorts.   

Only at the end of the report (pages 689-92), in what seems almost an afterthought (or ruptured appendix), does one find three and a quarter pages containing eleven, thin recommendations — the first of which is to reform and tighten the Electoral Count Act of 1887, which had already passed both houses and was inserted in the final omnibus appropriations bill cleared by Congress last Friday.     

Perhaps it should not be too surprising that so much of the report recites the various actions by Trump and his allies to block, delay, distort and reverse the vote count since almost all testimony heard by the committee was from witnesses with some knowledge of Trump’s role in trying to overturn the election. But, that almost exclusive emphasis falls far short of the committee’s obligation to recommend measures to prevent it from happening again.   

With the select committee expiring at noon next Jan. 3, as the 118th Congress is ushered-in, it remains to be seen how much follow-through there will be even on its paltry set of recommendations by the new Republican House. The vow by incoming Speaker-nominate Kevin McCarthy (R-Calif.) to investigate the Jan. 6 committee speaks volumes to how seriously he and his GOP colleagues value the select committee’s efforts and work product.  

I am reminded, some two decades after the 9/11 terrorist attacks on New York City and Washington, D.C., including the likely targeting of Congress by the fourth plane brought down in Pennsylvania, that we apparently still don’t have a plan in place for defending the Capitol against attacks and for swiftly moving members to more secure locations. Will we finally learn to do this any better this time? 

Don Wolfensberger is a Congress Scholar at the Woodrow Wilson International Center for Scholars, former staff director of the House Rules Committee, and author of, “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own.