How to investigate Jan. 6 (and other politicized issues) without a commission

When the 9/11 Commission Report was issued in the midst of the hyper-partisan “swift-boat” atmosphere of the 2004 presidential election campaign, its matter-of-fact presentation of the facts and circumstances surrounding the 9/11 terrorist attacks was hailed as a prototype for handling fact-sensitive issues in a bipartisan manner. Some saw 9/11-style commissions as a potential antidote to the increasing polarization of the American politics. 

Seventeen years later, the commission’s work looks more like the last hurrah of a vanished bipartisan era. In the wake of the shocking riots in the Capitol that cost the lives of police and rioters, endangered the lives of members of Congress and former Vice President Mike Pence (a noose awaited his capture), and threatened to disrupt the orderly transition of power under our Constitution, Congress has failed to endorse a similar bipartisan fact-finding into what happened and why.   

I served on the 9/11 Commission staff as senior counsel; my team was responsible for investigating the timeline of that day. In my view, the fact-finding in which the commission engaged validated its structure. A bipartisan “Jan. 6 Commission” would be ideal. But Congress’s failure to authorize one begs the question: If 9/11-style commissions cannot serve as a prototype because bipartisanship has become impossible, does an alternative exist? 

The recurrent need for a fact-finding voice outside of the party system calls for a revival, adapted to our time, of the historic role of the grand jury in finding facts and, where appropriate, issuing fact-finding presentments.   

The grand jury, you say? There is no question that the role of the grand jury in American life has been trivialized in recent years; the joke that prosecutors “could indict a ham sandwich” is a cliché of the modern American criminal justice system. As an assistant U.S. attorney in the 1990s, I was trained to control deliberations and to fear the “rogue” grand jury that asserted its independence.   

It wasn’t always so. In the early days of our republic, when the danger of “faction” motivated both opponents and defenders of the new Constitution, the independence of grand jurors and the power of grand juries to issue “presentments” was taken for granted. Following adoption of the Constitution, as Renee Lettow of Yale Law School has noted, federal grand juries frequently issued presentments calling for the adoption of a Bill of Rights: “One grand jury declared: ‘We present the lack of a bill of rights clearly defining the reserved rights of the several states, comprehended in the Guarantee of a Republican form of government to each of the several states by the constitution of the United States.’” These presentments were answered by the adoption of the Bill of Rights, which enshrined the grand jury in the Fifth Amendment.   

Well into the 20th century, former New York University Law School Dean and New Jersey Chief Justice Arthur Vanderbilt noted that grand jury presentments “have been a great force in bringing about many substantial improvements in public affairs which otherwise would not have come to pass or at least would have been long delayed.” The reason, he said, lay in the grand jury’s insulation from partisanship: “Grand jury presentments of public affairs serve a need that is not met by any other procedure. The grand jury provides a readily available group of representative citizens … empowered, as occasion may demand, to voice the conscience of the community.”      

Reviving that historic role of the independent grand jury presentment was suggested by the staff of Special Prosecutor Leon Jaworski during the Watergate investigation; it also was suggested during Robert Mueller’s team investigation of Russian interference in the 2016 election. In many ways, moreover, both the tone and the scope of the 9/11 Commission investigation and report represent the “great force in bringing about many substantial improvements in public affairs” that were the hallmark of grand jury presentments. 

A presentment accounting for the facts surrounding Jan. 6 could emerge from one or more of the Justice Department’s investigations of the Proud Boys and others allegedly involved in the riot.  But restoring the grand jury to true independence will require revisions to Federal Rule of Criminal Procedure 6, which, when adopted in the mid-20th century, effectively gutted the independence of the grand jury.   

The diminution of grand jury independence has empowered federal prosecutors, to be sure, but in a hyper-partisan era the absence of credible grand jury oversight of federal charging decisions renders the Justice Department’s decisions subject to charges of partisanship, and thus undermines public trust no matter which party is in charge. Increased grand jury independence is in the Justice Department’s interest.       

Scholars have suggested following Hawaii’s lead in appointing independent counsel and staff to serve grand juries; providing special rules for “public interest reporting” grand juries, setting forth standards for the issuance of fact-finding presentments, also should be considered. But the necessity for re-empowering the 23 random citizens who serve on federal grand juries should be clear to all.   

Democrats and Republicans alike decry the polarization that they routinely abet, and that will make the creation of future 9/11-style commissions nearly impossible. But recovering the original understanding of the proper role of grand juries as the expression of the conscience of “We, the People” will resonate with both Republican originalism and the Democrats’ promotion of civic engagement and expanded participation of citizens.   

It also will enhance public confidence in the actions of grand juries themselves in controversial cases such as police-involved shootings and afford a ready independent mechanism for finding the facts surrounding fraught political issues such as the Capitol riot.  

As Arthur Vanderbilt stated so many years ago, “What cannot be investigated in a republic is likely to be feared. The maintenance of popular confidence in government requires that there be some body of laymen which may investigate any instances of public wrongdoing.” A Jan. 6 Commission would be welcome; in its likely absence, restoring the voice of “the conscience of the community” may well be our best hope. 

John Farmer Jr. is director of the Eagleton Institute of Politics at Rutgers University. He is a former assistant U.S. attorney, counsel to the governor of New Jersey, New Jersey attorney general, senior counsel to the 9/11 Commission, dean of Rutgers Law School, and executive vice president and general counsel of Rutgers University.