It is doing the impeachment investigation Democrats failed to do, but this poses legal problems.
It is doing the impeachment investigation Democrats failed to do, but this poses legal problems.
This is the second column in a three-column series on the House Select January 6 Committee, prompted by the Republican National Committee’s censure of Liz Cheney and Adam Kinzinger, the House Committee’s two GOP members, and Senate minority leader Mitch McConnell’s rebuke of the censure resolution. The first column in the series is here.
T he work the House January 6 Committee is doing is important. The Capitol riot was an event of historic significance, and there should be a comprehensive congressional accounting of what was an attack on Congress itself. January 6 could and should have been an opportunity for both parties to project national unity against political violence of all stripes. Instead, because of Trump’s centrality to the riot, Democrats predictably acted as if the five-hour uprising at the Capitol had been a recurrence of the Civil War — while the months of lethal rioting and looting by the radical Left, triggered by George Floyd’s killing on Memorial Day 2020, rated nary a mention.
Democrats were in a uniquely advantageous position to exploit political power for partisan advantage. You can thank former president Trump for that. In his self-absorption, he sabotaged the Republicans’ golden opportunity to retain their Senate majority.
All they needed to do in Georgia, where the GOP has been strong, was hold just one of the two Senate seats up for grabs in a special election held the day before the riot. When Trump came to Georgia, however, he made the Senate campaign all about the supposedly stolen presidential election, slandering state Republican officials rather than stressing how vital it was to maintain a GOP Senate check on Biden. This discouraged the Republican base while galvanizing Democrats. Stunningly, Republicans lost both seats. Like the House, the Senate was now in Democratic control — with all the attendant fiscal recklessness and conveyor-belt confirmation of Biden’s woke-progressive judicial appointees.
Once in the driver’s seat, Democrats let partisan expediency steer the congressional calendar. Realizing that the country was impeachment-weary, they sat on their hands for days after the Capitol riot, trying to pressure Trump officials to remove the then-president under the 25th Amendment — for which there was no legal basis. Then they suddenly changed course, rushing to impeach Trump, essentially based on press reports (some of them seriously in error), without conducting an investigation. By contrast, Democrats had spent months before impeaching Trump over his dealings with Ukraine — a trifle compared to January 6.
The result was a shoddy, ill-conceived impeachment article that highlighted the legally dubious allegations of “insurrection” and “incitement.” In their haste, the House irresponsibly omitted allegations of high crimes and misdemeanors that were far less defensible and would have made for a far stronger case. For example, significant evidence provided grounds for suspicion that Trump may have:
- Undermined the Constitution’s election process;
- Undermined state sovereignty over the certification of electoral votes;
- Concocted a fraudulent scheme to reverse the election results through frivolous lawsuits, coercion of state officials, and public messaging that claimed massive election fraud even as, in court proceedings, Trump’s legal team was quietly conceding its inability to establish fraud;
- Attempted to co-opt the Justice Department and other executive agencies into the fraudulent scheme to reverse the election result;
- Caused fraudulent state certifications of alternative slates of electors to be submitted to the federal government;
- Pressured then–vice president Mike Pence and congressional Republicans to (as Trump recently put it) “overturn the election”;
- Been derelict in the commander in chief’s duty to defend the Capitol during a violent uprising in which the security forces had been overwhelmed — to say nothing of his failure, as promptly as possible once the mob began swarming, to exert his considerable influence over his supporters by encouraging them to stand down, forswear violence, and retreat from the Capitol grounds.
Had some or all of these derelictions been proved, it would have established Trump’s betrayal of the president’s solemn constitutional duties to preserve, protect, and defend the Constitution, and to faithfully execute the laws. A competent investigation would thus have resulted in additional, considerably stronger articles of impeachment. Instead, such allegations were omitted, the better to frame the riot as an “insurrection” for political purposes.
There was no excuse for this. Once House Democrats refrained from seeking an immediate impeachment after January 6, it became inevitable — with the presidential term expiring in less than two weeks, and with things calming down as Trump grudgingly agreed to transition power to Biden — that the Senate could not conduct an impeachment trial prior to Trump’s exit from office. This happenstance meant the novel constitutional question of whether a president could be tried for impeachment after leaving office would have to be grappled with. That would take time. There was simply no reason to rush. The House could have carried out a competent probe, drafted a full set of carefully investigated impeachment articles, voted on them when the investigation was finally complete, and then transmitted them to the Senate for a trial — however long that took.
Democrats, however, did not want Trump’s impeachment to interfere with what they saw as the opportunity to enact a radical progressive agenda during Biden’s first year in office. (House impeachment investigations are resource-intensive, and an impeachment trial effectively shuts down other Senate business.) So they rammed through their quarter-baked House impeachment article; then they presented an uninvestigated, incoherent, whirlwind case in the Senate trial; and then they called it a day, right after the Senate acquitted Trump (the 57–43 bipartisan majority vote for a guilty verdict fell short of the Constitution’s two-thirds supermajority requirement for conviction, removal, and/or disqualification).
Called it a day . . . except, with Biden floundering, Democrats still needed Trump and his accompanying specter of “domestic terrorism” as political cover. To do the investigative work that should have been done before the House impeached Trump, Pelosi and Senate majority leader Chuck Schumer first tried to erect a 9/11 Commission–style extravaganza, with unelected political celebrities delegated to do Congress’s job. Not surprisingly, with the impeachment over, the Democrats found few Republican takers. But because the House is a majority-rules institution, Pelosi did not need Republican cooperation to create the January 6 Committee. She proceeded to play what even she admitted was “unprecedented” partisan hardball in the committee’s design.
Congress’s Lack of Authority to Conduct Criminal Investigations
We’ll come back to this problem of political legitimacy. Let’s skip ahead to the committee’s legal problem — a complication apt to occur when a committee tries to do a de facto impeachment investigation without saying it is doing so and without authority to do so.
For all its touted aspirations to compile a comprehensive, definitive account of the Capitol riot, the committee’s paramount objective is to eviscerate Donald Trump as a force in American politics. Committee Democrats want to make an extensive congressional record of the former president’s unfitness because they’d like to run against him in 2024 and, in the meantime, to use him to deflect attention from Biden’s woes. Committee Republicans want to torpedo Trump because they believe he is corrupting the GOP and will help Democrats in 2022 and, especially, 2024. As a result, in significant measure, the January 6 Committee is conducting a criminal investigation of Trump. That raises a serious constitutional issue.
Now, I do not want to be misunderstood in this regard. I am not saying that the committee is unconstitutional. Nor am I saying that it lacks the legislative purposes that are prerequisites for the proper exercise of Congress’s broad investigative power. The D.C. Circuit Court of Appeals was unequivocal on the legislative significance of the committee’s investigation in recently rejecting Trump’s executive-privilege claims (a ruling upheld 8–1 by the Supreme Court). Congress is entitled to probe profound government failures. Plus, there are aspects of the committee’s investigation that plainly could lead to curative legislation — addressing, for example, Capitol security, perceived weaknesses in the Electoral Count Act, the security of voting machines, the possible prudence of tightening up state processes for certifying electors, and so on.
Nevertheless, under separation-of-powers principles, it is unconstitutional for a committee of Congress to conduct a criminal investigation (an issue that was not squarely before the D.C. Circuit or the Supreme Court).
If, in the course of a normal, legitimate legislative inquiry, Congress stumbles upon evidence of crime, it is not required to turn a blind eye. But it is supposed to refer such evidence to the Justice Department, and routinely does so, because criminal investigation is an executive function. Here, in stark contrast, the committee has not stumbled upon possible criminality. It is unabashedly using congressional investigative authority for the stated purpose of determining whether Donald Trump committed crimes.
This is undeniable. At a hearing in December, quoting from a federal criminal-obstruction statute (which the Justice Department has charged against many of the Capitol rioters), Representative Cheney said that a key question for the committee to answer is: “Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceedings to count electoral votes?”
Shortly thereafter, CNN’s Jake Tapper asked Representative Kinzinger if the committee was probing whether Trump had violated the criminal-obstruction statute. “Yes, we’re looking,” Kinzinger replied. He added that he was “not ready to go there yet,” and conceded that to claim Trump committed a crime “is obviously a pretty big thing to say.” He nevertheless stressed that committee members “want to know. . . And I think we will, by the end of our investigation and by the time our report is out, have a pretty good idea.”
Another example is provided by Representative Jamie Raskin, the Democrat who led last year’s impeachment-sans-investigation. In recently discussing the Trump scheme to propose alternative slates of electors that would feign being state-certified, Raskin told the New York Times: “The people who pretended to be official electors in states that were won by Biden were undoubtedly guilty of fraud on the Constitution and on the democracy. . . . It’s a trickier question whether they are guilty of either common-law fraud, state statutory fraud, federal mail fraud or some other offense.”
A congressional committee has no legitimate power to investigate whether Americans are guilty of crimes, as if that committee were the Justice Department or a grand jury. That is why eyebrows have been raised by the January 6 Committee’s tactics — e.g., issuing subpoenas for telecommunications and other business records, as prosecutors do in organized-crime probes; leveraging the Democratic-controlled Justice Department to prosecute recalcitrant witnesses for contempt, as had not been done in nearly 40 years; demanding that other members of Congress and the former president’s closest advisers provide the committee with testimony and documents — requests that raise knotty constitutional questions and set precedents Democrats may live to regret. Americans ought to be alarmed by the specter of a congressional committee, unleashed to conduct criminal investigations — and comment publicly about the evidence it has gathered, as the January 6 Committee regularly does — when those under this scrutiny lack the due-process protections of the criminal-justice system. The Framers forbade bills of attainder to guard against legislative tyranny: the exercise by Congress of powers to condemn and punish individual Americans.
Critically, there is a well-known exception to Congress’s lack of criminal-investigative authority — one that is brought into sharp relief by former constitutional-law professor Raskin’s aforementioned remarks about the interplay between derelictions of duty and penal wrongs — essentially between impeachable conduct and criminal law-breaking.
The Constitution vests Congress with the power to impeach, remove, and disqualify executive officials. For what it’s worth, I believe it is clear that the impeachment power may be applied to disqualify former executive officials (which, of course, is why the Senate proceeded with a post-presidency impeachment trial of Trump a year ago). The constitutional standard for impeachable conduct is high crimes and misdemeanors. Such misconduct can include crimes — including potential violations of the federal penal laws that the committee quite openly says it is inquiring into.
To be clear, I have no problem with an impeachment investigation. There are grounds for it. I can already hear the groans, but it is simply a fact that the committee is already conducting a de facto impeachment investigation. What we should object to is that the committee (a) has not been transparent about the inescapable fact that it is investigating whether Trump committed impeachable offenses, and (b) is insufficiently bipartisan to attract broad public acceptance for what it is doing. And a point worth underscoring: Enabling a committee to probe whether impeachable crimes have been committed would not obligate the House of Representatives to follow through with formal impeachment proceedings. It would simply put the committee’s investigation on firm constitutional footing.
In sum, it is apparent that the January 6 Committee is now effectively doing the impeachment investigation that House Democrats shirked from doing right after the riot. In principle, Congress surely has the constitutional authority to conduct an impeachment investigation even though Donald Trump is no longer president. But the committee the House has commissioned is not an impeachment committee. Legally, it has not been endowed by the House with authority to investigate whether impeachable offenses have been committed. And politically, it is an inappropriate vehicle, as currently constituted, for doing so.
So what should be done about that? That will be the focus of the final column in this three-part series.