Why the January 6 Investigation Is Weirdly Static
The House committee can still succeed, but success won't look like what a lot of onlookers are hoping for.
It was almost a year ago that rioters forced their way into the United States Capitol, smashing windows, threatening the lives of Vice President Mike Pence and members of Congress, and aiming to overturn the results of a democratic election in order to keep Donald Trump in power. In the intervening months, the Justice Department has filed charges against more than 680 people out of the “approximately 2000” whom the FBI estimates were involved in the attack. Meanwhile, the House select committee investigating January 6 is pressing forward with its own inquiry—litigating against the former president to secure access to documents from the Trump White House and pushing the Biden administration to prosecute the Trump confidant Steve Bannon for his refusal to engage with the committee’s questions.
The efforts to determine what happened on January 6, in other words, are moving forward. But in another sense, the landscape of post-insurrection investigations seems weirdly static. Though a steady stream of rioters are pleading guilty to relatively minor offenses, the Justice Department has yet to announce any breakthroughs in untangling the planning of the attack or unveil any blockbuster charges such as insurrection or “seditious conspiracy.” In Congress, the select committee has yet to convene any public hearings or announce new discoveries since its inaugural July 2021 hearing with law-enforcement officers who were attacked by insurrectionists. The most important events on January 6 were broadcast and livestreamed as they unfolded, and it’s difficult to imagine what additional facts the committee might uncover that would change the minds of those who watched it at the time.
Even so, the House committee’s lack of visible progress has some onlookers feeling antsy. “The members of the select committee need to tell the full story of January 6 clearly, publicly and dramatically,” argues Jonathan Bernstein in Bloomberg. “And they’re already very late.” The sense of urgency is all the more pronounced because the House is racing against the clock. With the Republican Party the firm favorite to take control of the chamber during the 2022 midterm elections, the committee will have to plan to finish its work by the end of that year, or risk a likely GOP majority shutting it down. The select committee’s chair, Representative Bennie Thompson, meanwhile, has set an even tighter deadline of “early spring” 2022, before midterm campaign season kicks in.
Will any good come of it? There is no shortage of questions for the committee to answer in such a brief time: to what extent the riot was coordinated; what role Trump himself might have played; why the federal government failed so catastrophically to foresee and respond to the violence. Hemmed in by so many constraints, it’s an open question whether the House investigation will succeed in the time that remains—and, for that matter, what “success” might look like. The committee will not, on its own, be able to deliver the lasting political accountability for the insurrection that the country deserves. But that doesn’t mean it can’t serve a valuable purpose.
Perhaps because the committee has provided no major revelations thus far, new details about Trump’s connections to January 6 unearthed by reporters have tended to receive outsize attention. As the MSNBC columnist Hayes Brown writes, “There’s still an obsession among elected Democrats, professional politicos and the media writ large with finding the piece of evidence” that will make unavoidably clear, once and for all, that the former president engineered the attack on the Capitol. Rolling Stone reported on texts by January 6 rally organizers saying that they were “following POTUS’ lead,” noting that the House committee has obtained even more records of the organizers’ communications. Writing that Trump personally placed a phone call early on January 6 to the Willard Hotel—where a team of the president’s associates had set up headquarters for their effort to block the certification of the electoral vote—the Guardian reporter Hugo Lowell suggested that the conversation is becoming more and more “a central focus of the House select committee’s investigation into the Capitol attack, as it raises the specter of a possible connection between Trump and the insurrection.” Recently, Lowell tweeted out a PowerPoint deck reportedly referenced in White House emails, setting out different ways for Vice President Mike Pence to derail the counting of the electoral vote and proposing that Trump declare a “National Security Emergency.” “Can someone explain to me why this isn’t the only thing in the news?” the Democratic Senator Brian Schatz demanded.
These details, if they bear out, are valuable—but they are details. The main facts of what happened on January 6—that Trump whipped up a political frenzy in his efforts to overturn the election, that his supporters broke into the Capitol after a speech in which he promised to “stop the steal,” and that the president declined for hours to tell them to stop—happened in plain sight. This doesn’t mean there is nothing left to discover: Among other things, there are serious questions to be answered about the range of institutional failures, from the Capitol Police to the FBI and the Pentagon, that enabled the attack. But if the public’s expectation is that the January 6 committee will be able to tell a substantially new and even more damning story about the attack, Americans may be setting themselves up for disappointment.
Central to this dynamic is the fact that the Republican Party refuses to hold Trump to account. It’s tempting to imagine that there must be something the January 6 committee could reveal that would turn the party against him. But January 6 itself was that something, at least initially: Though it’s strange to remember now, Republican leaders initially excoriated Trump for his role in the violence, before revising their version of events to align with his defense of the insurrectionists.
So whatever the committee finds, it’s hard to see it substantially altering the political landscape. A true reckoning, a full repudiation by Republicans as well as Democrats of Trump and of the ugly ideology that fermented the riot, will remain elusive. This is frustrating—not to mention profoundly unjust—but it’s not cause to write off the work of the January 6 committee. Rather, it’s a reason to maintain realistic expectations for what the committee can achieve in the time that remains. The post-Mueller slump of disappointment pushed Trump opponents into political stasis as they struggled to respond to the special counsel’s findings. With the midterm elections coming up, Democrats and anti-Trump Republicans can’t afford dithering like that again.
Representative Liz Cheney, one of the committee’s two Republican members, announced recently that she and her colleagues plan to hold “multiple weeks” of hearings in the new year to establish “in vivid color exactly what happened on Jan. 6.” The criminal cases against January 6 rioters fill out some of this color, but they’re focused on the specifics of individual defendants, rather than the narrative as a whole. If the committee can persuasively channel the flood of information about the attack into a definitive account, that will be a service to the public and to the historical record—an insistence that the truth of that day matters, whether or not it’s palatable to Trump and his supporters.
So far, the investigators seem dedicated to pursuing that truth without modulating their conclusions in search of a consensus that will never come. “This committee’s investigation into the violent assault on our Capitol on Jan. 6 is not a game,” Cheney warned after Trump challenged committee members to a debate over the integrity of the 2020 election. Congressional investigators have also pushed forward aggressively by holding Bannon in contempt of Congress—the Justice Department’s prosecution of which is the first in almost four decades, and a successful conviction of which would be the first since Watergate—and threatening contempt charges for other uncooperative former Trump administration officials.
Sitting in the Oval Office, Trump did his best to undermine the ability of Congress to investigate the president. Today, in fighting the January 6 committee’s subpoenas and requests for information, he’s attempting to use the same techniques from his post-presidential repose. This suggests another way to judge the committee’s success. Can it prove that it can get the material it wants and reassert Congress’s investigatory powers, after years of weakness?
Steve Bannon, who was reportedly closely involved with the planning of the January 6 rallies, has refused to engage with the committee on the basis that Trump instructed him not to. The former president invoked executive privilege, the constitutional doctrine that certain presidential communications are protected from outside inquiry. This claim is far from ironclad for a number of reasons, among which is that Bannon was, at the time of the communications with Trump of interest to the committee, not an executive-branch official but a podcast host. Mark Meadows, Trump’s former chief of staff, has also backed away from cooperation, after providing investigators with a tranche of his text messages and emails, and is now suing to block subpoenas from the committee. Meanwhile, Trump has also sued to stop the National Archives from presenting a wide swath of documents from his White House to the committee, both asserting executive privilege and arguing that Congress has no power to conduct this sort of investigation in the first place.
Similar efforts to blockade congressional investigators worked well for Trump while he was in office. The president successfully delayed Congress from obtaining his tax returns by litigating the case up to the Supreme Court, though the justices declined to endorse his most extreme interpretations of presidential power, and Trump was able to delay Congress’s efforts to question former White House Counsel Don McGahn over the Mueller report for almost two years. Now, though, the picture is different. As a former president, Trump is arguing from a far weaker position than he enjoyed in office—especially because President Joe Biden has expressly declined to invoke executive privilege himself in the interest of supporting the committee’s work. On December 9, an appeals court ruled against Trump in his case against the National Archives, and though Trump will almost certainly appeal to the Supreme Court, it seems all but certain that he will lose in the end.
The glacial pace of the McGahn case, in which Congress sought the judiciary’s assistance in enforcing its subpoena, showed the limitations of civil litigation as a means of flexing congressional muscle. With its decision to pursue contempt charges for Bannon, the committee is both taking a more aggressive approach than the previous Congress and making use of an option that wasn’t available under Trump: Criminal contempt requires the cooperation of the Justice Department to indict and prosecute, something that Trump’s attorney general, William Barr, presumably would have been uninterested in pursuing. The contempt prosecution will not in itself force Bannon to talk, but it’s a show of force that might persuade other wavering witnesses to cooperate if they wish to avoid charges.
Leveraging this threat successfully would be a powerful demonstration that Congress won’t remain quiescent in the face of an attack on the first branch of government—and a statement that Trump’s dictatorial vision of absolute presidential power won’t prevail. But there are still limits to the committee’s approach. Decades of ever-expanding assertions of executive privilege by the Justice Department mean that a conviction in Bannon’s case is not a certainty, and if the committee pursues contempt charges against Meadows—as it has threatened to do—the former chief of staff will be able to make a much stronger claim of privilege than Bannon can. “Criminal contempt may be unusually effective in this particular case because the committee is investigating the prior administration, so DOJ was willing to prosecute” in Bannon’s case, Josh Chafetz, a law professor who studies Congress, told me over email. “Going forward, it doesn’t do much for oversight of whatever administration currently controls the White House.”
The committee also has a major advantage in the form of Democratic control of both Congress and the presidency, and a White House willing to lend a hand. During periods of divided government, legislative investigators could run into the same problems encountered by the House under Trump. “Congress still needs to do a lot more thinking about other tools at its disposal,” Chafetz said—including, potentially, “reinvesting in its power to arrest people itself” under the authority known as inherent contempt. A package of ambitious reform legislation currently before the House could also help by speeding up the pace of subpoena enforcement through civil litigation and stripping away some of the legal obstacles that dragged down the McGahn case.
There is more than an echo, in some of the public excitement for what the January 6 committee might achieve, of the dashed hopes for the Mueller investigation—whose final report was both a shocking chronicle of unprecedented wrongdoing and relatively ho-hum compared with the wild speculation that preceded it. The Mueller report also suffered from the implicit expectation among Trump’s opponents that a criminal probe would be able to compensate for political stasis and institutional decay. In 2019, the prospect of real political action in response to Mueller’s devastating findings seemed possible, if unlikely. Today, the question isn’t whether Congress will act, but whether that action will matter in the face of a progressively authoritarian Republican Party poised for victory in 2022. Documenting the truth is one thing. Figuring out whether people want to listen to it is another.