Approaching the first anniversary of the Jan. 6 riot at the Capitol by supporters of former President Donald Trump, the House select committee investigating the matter could have a big year ahead in 2022.
The Jan. 6 select committee has interviewed more than 300 witnesses behind closed doors, including state and local elections officials it says were pressured by the Trump campaign. It has also reviewed about 35,000 pages of documents—notably, text messages to and from Trump’s last White House chief of staff, Mark Meadows.
The nine-member committee is made up of seven Democrats and two Republicans, all appointed by House Speaker Nancy Pelosi, D-Calif., after she blocked GOP appointments by House Minority Leader Kevin McCarthy, R-Calif.
McCarthy and other Republicans have questioned the legitimacy of the committee, its tactics, and its partisan imbalance.
The following are six things to expect in the coming weeks.
1) Televised Hearings, Interim Report
In 2022, the committee, which has mostly been operating like a grand jury gathering information, will come out into the open with hearings on TV.
Select Committee Chairman Bennie Thompson, D-Miss., said the panel is considering prime-time hearings to maximize exposure.
“The public needs to know, needs to hear from people under oath about what led up to Jan. 6th, and to some degree, what has continued after Jan. 6,” Thompson told Bloomberg News.
The committee plans to release an interim report in the spring or summer of its findings and a final report in the fall—ahead of the November 2022 midterm elections.
The Jan. 6 riot at the Capitol led to the second impeachment of Trump, in which a bipartisan House charged him with “incitement to insurrection.”
2) Expansive Scope
The committee is investigating more than just the riot, and whether any planning went into it, but also expanding the probe to the steps that Trump, his campaign, legal team, administration officials, and members of Congress might have taken in trying to stop the certification of the election of his successor, President Joe Biden.
In a statement bearing more than 70 signatures from notable conservative leaders, the Conservative Action Project criticized the committee for reaching into matters unrelated to the riot.
“At the outset of the committee’s formation, Chairman Bennie Thompson sent letters to 35 telecom, email, and social media companies instructing them to preserve call details, text messages, location records, and the content of posts for a list of individuals, which reportedly include members of Congress, members of the Trump family, and a host of regular Americans who may have been ‘otherwise involved’—in what, it is not clear,” the Conservative Action Project statement says. “The records request, which is supposedly related to the events of January 6th, for some reason goes all the way back to April 2020.”
The statement continues:
In short, Thompson issued a surveillance order for a secret list of people who haven’t necessarily done anything wrong, and who Democrats want to be prohibited from knowing that the intimate details of their digital lives are being harvested by Congress.
The committee has since escalated its violations by referring criminal contempt charges to the Department of Justice for those who refuse to comply—including, for example, for former Assistant Attorney General Jeffrey Clark, whose actions have no demonstrated connection to the events of January 6th.
The [Justice Department], which has not pursued a criminal contempt charge in roughly 40 years despite receiving many of them, has acted in a nakedly partisan manner in issuing charges against [former Trump campaign and White House adviser] Steve Bannon.
The committee is investigating whether rioters planned to block the Electoral College vote count, and whether they wanted to get their hands on the electoral ballots.
Thompson said, “That it was an organized effort to change the outcome of the election by bringing people to Washington … and ultimately, if all else failed, weaponize the people who came by sending them to the Capitol.”
The FBI concluded in August there was little evidence the attack on the Capitol was coordinated by supporters of Trump. The FBI found that followers of extremist groups Oath Keepers and Proud Boys had aimed to break into the Capitol, but didn’t have any plans of what to do when they got there.
Reuters quoted an FBI official saying: “Then you have 5%, maybe, of these militia groups that were more closely organized. But there was no grand scheme with [Trump campaign adviser] Roger Stone and [webcaster] Alex Jones and all of these people to storm the Capitol and take hostages.”
The committee has already interviewed election officials from the closely contested 2020 states of Arizona, Georgia, Michigan, and Pennsylvania about Trump’s pressure campaign, The Associated Press reported.
The panel also will look at the money funding the “Stop the Steal” rallies and events that happened after the election leading up to Jan. 6, The Washington Post reported.
3) Legal and Legitimacy Questions
Legality and legitimacy questions could dog the committee.
The Conservative Action Project referenced the Supreme Court’s 1957 ruling in the case of Watkins v. United States, which said, “There is no congressional power to expose for the sake of exposure” or to engage in conduct “where the predominant result can only be an invasion of the private rights” of individuals.
“Not content with bullying and threatening anyone who does not comply to their satisfaction with whatever the committee decides it wants, the committee is now threatening subpoenas against their own House colleagues, a wild and unprecedented breach of protocol, decorum, and House tradition, as well as an assault on the constitutionally protected ‘speech and debate’ clause rights of members of Congress, and thus on the Constitution itself,” the Conservative Action Project statement says.
Rep. Scott Perry, R-Pa., has said he would not talk to the committee, tweeting, “I stand with immense respect for our Constitution, the rule of law, and the Americans I represent who know that this entity is illegitimate, and not duly constituted under the rules of the U.S. House of Representatives.”
Under House tradition, the leadership of both parties appoint members of a committee—with the breakdown usually decided on a proportional basis, based on how large the majority-minority party ratio is. In this case, the House has 222 Democrats and 213 Republicans, which would suggest a 5-4 split, but the committee has seven Democrats and two Republicans, all appointed by Pelosi.
McCarthy initially named five members to the committee, but Pelosi blocked Reps. Jim Jordan of Ohio and Jim Banks of Indiana. In response, McCarthy withdrew the other appointments as well. Pelosi appointed anti-Trump Republicans Rep. Liz Cheney, R-Wyo., the select committee vice chairwoman, and Rep. Adam Kinzinger, R-Ill., to give the committee the patina of bipartisanship.
However, since House Resolution 503 gives the speaker the authority to appoint members, she is not bound by House rules to allow the minority leader to appoint members, said Thomas Jipping, a senior legal fellow at The Heritage Foundation.
In addition to Perry and Jordan, the committee also reportedly wanted to talk to McCarthy; and Reps. Mo Brooks, R-Ala., and Paul Gosar, R-Ariz. Further, Sens. Mike Lee, R-Utah, and Tommy Tuberville, R-Ala., also spoke with Trump during the violence.
However, there could be another question if a congressional committee seeks to compel testimony from another member of Congress. Congress has oversight of the executive branch and the judiciary.
“My instinct is that, no, a committee cannot compel a member to testify, and I have a hard time believing that they would try. That would be a nasty precedent to set,” Jipping told The Daily Signal.
“More specifically, I suppose it might depend on what the committee would want to question the member about, since the speech and debate clause protects members from being questioned in ‘any’ place about ‘speech or debate’ which has been interpreted to encompass anything in the ‘sphere of legitimate legislative activity.’” Jipping added. “So, it depends whether what the committee would want to question them about falls in this category.”
4) Potential Witnesses
Fox News host Sean Hannity is the most recent public target of the committee, as Thompson and Cheney sent a letter to the prime-time TV commentator requesting he provide information. That was short of a subpoena.
The letter quoted a Dec. 31, 2020, text from Hannity to Meadows that said: “I do NOT see January 6 happening the way he [Trump] is being told. After the 6 th. [sic] He should announce will lead the nationwide effort to reform voting integrity. Go to [Florida] and watch Joe [Biden] mess up daily. Stay engaged. When he speaks, people will listen.”
Apparently failing to get Trump to drop his challenge to the election results, Hannity sent another text on Jan. 5, 2021, that said, “I'm very worried about the next 48 hours,” as quoted in the Tuesday letter from Thompson and Cheney to the Fox News personality. The committee released a text message from Hannity in December that showed him imploring Meadows on Jan. 6 to get Trump to make a statement to stop the riot.
Hannity’s lawyer, Jay Sekulow, said a subpoena could violate free press concerns, but committee members contend Hannity is a fact witness.
The House voted to find Bannon in contempt of Congress for not cooperating with the committee. A federal grand jury subsequently indicted him.
Bannon pleaded not guilty to the contempt charge and said his case would be “the misdemeanor from hell for [Attorney General] Merrick Garland, Nancy Pelosi, and Joe Biden.”
The House might take similar action against Meadows.
Both Bannon and Meadows have argued that since Trump has invoked executive privilege, they cannot fully cooperate with the committee.
Meanwhile, the committee has taken the unusual course of seeking testimony from Perry and Jordan.
On Jan. 2, Cheney said there is new evidence that the 45th president’s daughter, Ivanka Trump, asked him to intervene while the attack on the Capitol was occurring.
“We have firsthand testimony now that he was sitting in the dining room next to the Oval Office, watching the attack. The briefing room at the White House is a mere few steps from the Oval Office,” Cheney told ABC News. “ … We know Leader McCarthy was pleading with him to do that. We know his daughter—we have firsthand testimony—that his daughter, Ivanka, went in at least twice to ask him to please stop this violence.”
5) Potential for Criminal Referrals
Committee members said they intend to make criminal referrals to the Justice Department. That has the potential to include the former president—even though it’s not clear what he would be charged with.
Trump has asked the Supreme Court to review his claim of executive privilege to not provide information to the committee. It’s not entirely clear how much of a claim to executive privilege a former president has, said Curt Levey, president of the Committee for Justice, a conservative legal group.
“It depends on whether you view the need for executive privilege to protect state secrets or to encourage candid conversations,” Levey told The Daily Signal.
Former Clinton Justice Department official Harry Litman wrote recently in the Los Angeles Times that Trump could be charged even for seemingly doing nothing.
“Criminal liability generally requires the combination of intent and action, which is why omitting to act typically doesn’t land you in jail,” Litman wrote. “But when a defendant has a legal duty to act and does not, the principle gives ground.”
He wrote that even if Trump “anticipated merely a peaceful rally at the Capitol on Jan. 6,” he had responsibility in setting the rally-turned-riot in motion.
“In Trump’s case, the indictment sheet would cite not only Title 18, U.S. Code, Section 2, which proscribes aiding and abetting a crime, but also Section 1512, which makes it illegal to obstruct or impede (or to try to obstruct or impede) any official proceeding—including Congress’ certification of a presidential election,” Litman wrote.
In a statement Tuesday, announcing the cancellation of his Jan. 6 press conference, Trump again called the panel the “unselect” committee, and brought up various questions it should ask.
“This is the Democrats’ Great Cover-Up Committee and the [media are] complicit. Why did Adam ‘Shifty’ Schiff forge and change the statement of Congressman Jim Jordan without any consequence?” Trump’s statement said.
“Why will Crazy Nancy Pelosi not provide her communications with the House Sergeant-at-Arms and the House Chief Administrative Officer, or promise to retain these vital messages, which many feel she has already destroyed—perhaps illegally?” Trump continued. “Also, why is the primary reason for the people coming to Washington, D.C., which is the fraud of the 2020 Presidential Election, not the primary topic of the Unselect Committee’s investigation? This was, indeed, the Crime of the Century.”
6) Legislative Proposals
In what might likely spark controversy comparable to the passage of the USA Patriot Act, the Jan. 6 committee reportedly plans to recommend improving U.S. intelligence gathering, to ensure “this will never, ever happen again,” Thompson said.
A joint Senate report by the Homeland Security and Rules committees identified intelligence and security failures that it said contributed to the lax security when the rioters stormed the Capitol.
Trump reportedly suggested to Pentagon officials that 10,000 National Guard troops might be needed to secure the Capitol on the day of the rally. Neither Pelosi nor Defense Department officials acted upon the request.
Other proposals could be less controversial, depending on the details.
Committee members are reportedly considering recommending changes to the Electoral Count Act, the 19th-century law that dictates the procedure for Congress counting Electoral College votes. The law allows for members to object to the votes already certified by the states. Either scrapping or reforming that law has gained support from legal scholars on the right and left, The Washington Post reported.
The select committee furthers plans to recommend legislation to boost coordination of resources to protect the U.S. Capitol, Thompson said.
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