In a bipartisan vote last week, the House passed legislation to create an independent national commission to investigate the January 6 attack on the U.S. Capitol. A 9/11-style commission is the best option for uncovering the truth about the attacks and its multiple causes, and for recommending ways to protect us in the future. But opposition from Republican leadership in the House and Senate, as well as former President Donald Trump, paints a bleak picture for passage in the Senate according to many observers.
Every effort should be made to overcome the opposition to a commission. But we should also consider alternatives given that the commission may not happen and, even if it does, the current plan to sunset the commission by the end of 2021 would render it effectively powerless to compel evidence. What’s more, laying out what might happen if a commission fails could help convince doubters that a commission is preferable: For all the concerns expressed by Republicans in the Senate, they may prefer a commission they can influence over a select committee they cannot.
Norm Ornstein and Andy Wright have each suggested a few alternatives, among them a congressional select committee, a Department of Justice special prosecutor (or similar special entity), or a presidentially-created commission. Another option would be to let individual committees in Congress conduct separate investigations. All of these options have pluses and minuses but a House select committee would be the best.
Bad Options: Extraordinary Executive Branch Initiatives and Ordinary Congressional Investigations
Let’s start with the DOJ and presidential commission options. A special prosecutor or similar option based in the DOJ would have strong subpoena powers, which is critical given the number of witnesses who might not want to cooperate. But the DOJ’s job is to prosecute people, not engage in broader inquiries into complex questions of this sort. As one example here, it is not clear how a DOJ-based inquiry would have a basis to explore how social media companies created fertile ground for insurrectionists to organize and indulge in disinformation. An added problem is that the DOJ is already prosecuting scores of individuals for their role in January 6. A DOJ-based task force or special prosecutor is the alternative that’s most likely to be duplicative with that ongoing effort. Plus, Attorney General Merrick Garland is trying to depoliticize the DOJ. For all its nonpartisan and bipartisan merit, creating a special body that would include looking at the former president’s role in the insurrection would be difficult to shield from accusations of politics.
A presidential commission would have broader flexibility, but its power to compel evidence likely would be limited and it would probably be governed by the strictures of the Federal Advisory Committee Act (FACA), which might constrain its functions. As Ornstein points out, a commission created by President Biden would also be susceptible to political attack because “the whole assault was based on the ‘big lie’ that Joe Biden didn’t win the election.”
Relying on individual congressional committees to investigate has some appeal. Committees have strong familiarity with individual executive agencies, subpoena power, and investigations already underway. Standing committees, however, have competing priorities and other important work to do. We need confidence that an investigation will take precedence over other matters of business. In addition, multiple investigations will result in scattershot findings and recommendations. The January 6 attack was a singular event that deserves a unified history.
The Best Plan B: A House Select Committee
A select committee, preferably in the House, stands as the best alternative for several reasons. First, the Speaker could create one by majority vote and she could do it quickly. Members and staff would need to be recruited, but they are already on hand in Congress.
Second, a select committee could be given subpoena power comparable to other House committees. Over the past decade, the House has largely adopted unilateral subpoena authority for committee chairs, giving House committees fewer procedural hurdles and opportunities for obstruction (there are serious costs to this trend, but for purposes of this analysis, it’s how things work).
Third, congressional committees have special access privileges to Trump administration documents, including White House documents, that have been sent to the National Archives. Under the Presidential Records Act (PRA), most Trump White House documents are effectively under seal for several years. But Congress can break that seal right away based on a low showing of need. What happened in the White House during the insurrection remains one of the biggest gaps in our understanding. And unlike the subpoena fights during the Trump administration, now former President Trump does not control what happens to his documents. He has lost what William Rehnquist, as head of the Office of Legal Counsel, called a “head start” in oversight disputes. Instead of Congress needing to sue to enforce a subpoena, President Trump would need to sue to block releases. President Biden would also have final say over executive privilege claims. (The PRA access is critical for any investigation. If a commission is created legislatively, the bill should give it access to Trump-era documents.)
Fourth, a select committee would have at least until the end of 2022 to operate. As written, the national commission legislation contemplates the commission terminating no later than December 31, 2021, mere months away.
There are, of course, downsides to a select committee that make it less preferable to a national commission. In exchange for the majority power to create a commission, Congress would lose some of the potential bipartisan and independent legitimacy of a national commission. The Benghazi select committee began under a cloud of partisanship and never escaped it. Here, Minority Leader Kevin McCarthy would get to appoint members to the committee and would in all likelihood select members committed to turning the proceedings into a circus (under a commission model, McCarthy and Senate Minority Leader McConnell would also get to appoint members, but not from the rank and file of the House). This is a substantial problem, but it could be mitigated. For one, Speaker Nancy Pelosi could appoint serious, credible members. She could even choose members like Rep. Liz Cheney to give the committee bipartisan support. And of course, members appointed by the majority can choose not to comport themselves like members of the Benghazi committee. Moreover, the obstreperousness of the minority members could be overcome by committee chair’s unilateral subpoena power. That obstreperousness might also serve as a regular, highly public reminder of the anti-democracy movement within the Republican caucus.
A select committee’s subpoena power also would suffer the same limitations as other congressional subpoenas. They are powerful on paper, but recent years have shown that litigation over congressional subpoenas can take years. Although the Trump DOJ took maximalist positions in litigation, it is far from certain the Biden administration would acquiesce entirely, undercutting hard-fought protections against oversight of the White House that could come back to bite them. But here the special Presidential Records Act access for Congress would be an important–and somewhat novel–mitigation of these limits. For once, Congress would be in the driver’s seat with legal presumptions and procedure favoring it.
One of the most complicated dynamics of any January 6 investigation is the role of members of Congress themselves. Members were key players and key witnesses in the events. No matter what institution investigates, it will be a challenge to obtain information from them. If the investigating body is part of Congress, those challenges could be compounded by institutional reluctance to create precedent that pierces legislative privileges and traditions.
On balance, a House select committee is not the optimal vehicle to investigate the January 6 insurrection. An independent, bipartisan commission is. But we cannot wait forever to get the investigation started, especially if subpoenas will be necessary. And every day spent negotiating in vain for a commission for which there are not ten Republican votes in the Senate is a day lost for others to conduct an investigation. If a commission is not in the cards, the House should move expeditiously to create a select committee. It’s not the ideal option, but it might be the best one available.