The House committee investigating the Jan. 6 attack on the Capitol is eyeing a laundry list of tasks as it seeks to pull together a legislative package to prevent future insurrections.
The committee for months has touted the legislative purpose to its investigation — a key detail as various subpoena recipients have sought to skirt compliance with the panel.
But with the panel staring down a tight end-of-the-year deadline to complete its work, time is dwindling to introduce a package that could range from electoral reforms to enhanced criminal penalties.
“We have some minor factual loose ends to wrap up, but then really what we need to do is to make our sweeping legislative recommendations about what needs to be done to fortify America against coups and insurrections and political violence in the future,” said Rep. Jamie Raskin (D-Md.).
“We want to strengthen and fortify the electoral system and the right to vote. We want to do what we can to secure the situation of election workers and keep them safe from violence. We want to solidify the states in their determination that private armed militias not operate in the name of the state. You know, we don’t have any kind of federal law or policy about private armed militias,” Raskin added, saying the last point was a personal interest of his.
Vice Chair Liz Cheney (R-Wyo.) alluded to the wide range of legislative options as far back as October when the House was considering a contempt of Congress vote against onetime Trump strategist Stephen Bannon.
She cited Trump’s dereliction of duty in watching the riot unfold while doing little if anything to stop it, saying, “We are evaluating whether our criminal laws should be enhanced to apply more consequences to this type of behavior.”
She also pointed to Trump’s call to pressure Georgia’s secretary of state to “find” more votes, saying the panel was contemplating enhanced penalties for such actions in general.
Cheney also floated that legislation could address Trump’s alleged pressure campaign at the Department of Justice.
Trump’s attempt to reverse President Biden’s victory has also prompted the most publicly discussed efforts to reform the Electoral Count Act.
Senate lawmakers introduced legislation that would reform the Electoral Count Act in July. A companion bill was introduced in the House this week by two lawmakers who do not serve on the Jan. 6 committee.
The bill seeks to clarify the role the vice president plays in certifying the results, specifically stating that it is purely ceremonial. The legislation also would raise the bar to successfully challenge a state’s Electoral College result, from just one House member and one senator from a state to 20 percent of a state’s congressional delegation.
It also directly targets Trump’s fake elector scheme by largely leaving each state’s governor in charge of submitting electoral certificates to end the risk of any competing electors.
Rep. Zoe Lofgren (D-Calif.) has her own Electoral Reform Act bill in the works — one she said would go beyond the measures outlined in the Senate legislation.
While she says work on it is being “buttoned up,” it’s not clear when it will drop — though it’s scheduled to go to the House floor next week.
Lawmakers have been more secretive about what legislative measures they might consider beyond reforming the Electoral Count Act.
“You’ve got to wait on the recommendations and the findings,” Chair Bennie Thompson (D-Miss.) said in response to a question from The Hill.
But they have offered some hints.
Quinta Jurecic, a fellow at the Brooking Institution and a senior editor at Lawfare, said she’s seen ties between Cheney’s comments on the floor over a year ago and the structure of the hearings.
“They’re definitely really looking at the sort of the criminal law aspect and this question of whether or not Trump personally could be held accountable which I think is consistent with the hearings so far where you saw they were really leaning in on Trump’s personal, moral and potentially legal culpability for the insurrection,” she said.
Claire Finkelstein, a law professor at the University of Pennsylvania specializing in ethics, said there are already laws on the books that could be used to cover some of Trump’s behavior.
“A call to [Georgia Secretary of State Brad] Raffensperger and anything like that is already illegal. So the idea that we should strengthen laws against interfering with elections on the part of a sitting president — we have all the laws we need. Or, for example, putting executive branch employees under political pressure to support his political campaign. That is a criminal violation of the Hatch Act,” she said.
The Hatch Act, which bars coercing federal employees into political activity, has a little-known criminal provision, but it carries just a possible three-year prison sentence.
But the committee could also look at placing more specific limitations of the office of the presidency or clarifying that its occupant is subject to certain criminal penalties.
“There is very much an ongoing discussion about whether or not the presidency as a whole really sort of needs to be rethought in wake of the experience with Trump — that he sort of showed how much a bad faith executive can get away with,” Jurecic said.
Finkelstein would like to see the panel specifically counter various memos from the Justice Department’s Office of Legal Counsel setting a policy that a sitting president cannot be indicted.
“That policy — which is grounded in nothing in the Constitution, and dictated by nothing in existing law, and in fact, in our view, contradicts existing law — is policy only. It’s not itself law,” she said.
Any such legislation could face a difficult path forward in Congress, but the multiple bipartisan efforts to change the Electoral College Act suggest the more modest reforms stand the best chance for passage.
But Raskin has said he would see such limited action as a failure.
“Donald Trump didn’t set out to overthrow the Electoral Count Act, he set out to overthrow the election. And the election is far broader than just the Electoral Count Act,” he said.
“We need to develop a comprehensive approach to guaranteeing voting rights and solidifying the electoral apparatus against coups and insurrections, political violence and electoral sabotage in the future,” he added.
“If all we did was to say that the vice president does not have the authority to nullify Electoral College votes, then we will not have lived up to this moment,” Raskin said.
Mychael Schnell contributed.