This is not a traditional investigation, much less a fact-finding exercise.
This is not a traditional investigation, much less a fact-finding exercise.
S o I watched Bennie’s Hill Show on Thursday night, the not-quite-ready-for-prime-time hearing of the House January 6 committee under Chairman Bennie Thompson (D., Miss.). The committee is crafting a narrative about — as opposed to conducting a by-the-book investigation of — the Capitol riot.
Notwithstanding the exertions of the former ABC News exec the Democrat-dominated panel retained to make a slick TV production of this month’s much-hyped hearings, Thursday’s extravaganza did not break new ground, let alone “blow the roof off the house,” as committee stalwart Jamie Raskin (D., Md.) had breathlessly anticipated. Not that there’s anything wrong with that. The Capitol riot was a disgrace, and any congressional committee would be within its rights to show that vividly, even if doing so didn’t tell us anything we didn’t already know. Still, more notable than what we saw was what we didn’t see.
First, contrary to this wickedly comic Babylon Bee post, Miley Cyrus did not actually perform at halftime of the production. That was unfortunate. Unlike the sparse but invested spectators at a normal congressional hearing — you know, those quaint affairs that used to happen during business hours — a national television audience is tough to hold. As Bennie Thompson is really not Benny Hill, it was unrealistic to expect viewers to hang in through his plodding opening statement, to say nothing of the meandering break he took in the middle of the, um, action. Those who did stick around got a well-structured story line from Liz Cheney (R., Wyo.), effectively interspersed with video mined from riot footage and witness testimony — not quite Emmy material, but effective to the purpose nonetheless.
The second omission? Oh, yeah — cross-examination.
That, if it had been allowed, would have entailed the presentation of perspectives contrary to, and potentially corrective of, the committee’s narrative. Notice that’s narrative, singular. Again, this is not a traditional investigation, much less a fact-finding exercise. It is not like a trial or a truly bipartisan probe, where advocates of adversary positions clash, and in that clash the picture sharpens and we learn what really happened.
I was taken aback by commentary on Twitter and elsewhere, in which normally sensible people claimed that the deep flaws in the committee’s composition and procedure can be forgiven because we are getting to see the witnesses and the evidence. Nobody believes that — at least nobody who gives the matter more than ten seconds of sober thought, enough time to shake off the Trump-loathing spell that still seizes the chattering class a year and a half after he should have stopped being relevant.
Imagine a criminal trial in which only the prosecution got to call witnesses. No cross-examination by the defense. No presentation of defense evidence, submitted to cast doubt on the government’s version of events. Would anyone recognize that as a reliable, legitimate fact-finding exercise? Would anyone say, “Well, maybe the process was skewed, but at least we got to hear the witnesses and see the evidentiary exhibits, so I guess we know what happened”? Of course not.
Yet, that’s what the January 6 committee is presenting.
See, we’re talking about a select committee. Under House rules, that means Speaker Nancy Pelosi (D., Calif.), a partisan Democrat who is rabidly anti-Trump, got to handpick the members. In a move Democrats will come to rue, Pelosi rejected the two-century norm that allows leadership of the minority party to choose which of its members will fill its allotted committee seats. As a technical matter of the rules, Pelosi had the power to do this — the resolution creating the committee, which Pelosi’s minions wrote, required her merely to “consult” with the Republican minority leader, Kevin McCarthy (R., Calif.), not accept his recommended appointments. She thus nixed his choice of two ardent pro-Trumpers, Jim Jordan (R., Ohio) and Jim Banks (R., Ind.) — which, predictably, induced McCarthy to reject any GOP participation and malign the committee as a political hit job.
In terms of the probe’s legitimacy, Pelosi’s despotic move is a blunder. Much of the country has no interest in the House’s January 6 investigation, even though a credible investigation of the Capitol riot should be a priority.
You can tell yourself I’m drinking the Trump Kool-Aid here, but it ain’t so. I think Trump should have been impeached and disqualified from holding future office. As I’ve argued, the January 6 committee is trying to do the impeachment investigation that derelict Democrats failed to do in January 2021. But that is not a worthy exercise unless the committee both admits that this is what it is doing and permits the mainstream Republican perspective to be represented.
Now, is that GOP perspective more Trump-apologist than it should be? Yes . . . but so what? I used to prosecute bad guys for a living. I can attest that we let even terrorists, mafiosi, and scam artists have lawyers and present a defense. They get to poke holes in the government’s version of events, or at least try to. The accused’s opportunity to be heard is what lends credibility to the proceedings.
Pelosi, a tyrannical leftist, didn’t want to risk a fair, adversarial process — as if allowing big, bad Jim Jordan to go off on the occasional Trumpist tirade [eyes rolling] would have in any way impeached, say, the powerful testimony of the police who, during last year’s first hearing, described the horror of being under siege.
Pelosi instead carefully chose Democrats and two Republicans who are as tunnel-focused on Trump as she is. The only perspective on the committee is anti-Trump: The Insurrection™ is the worst episode of domestic terrorism in American history, and Trump incited it. Certainly, committee members are entitled to believe that. Without giving different perspectives an opportunity to be heard, though, what they’re producing is a TV show, not the conclusions of a credible investigation.
Some problems with this are already manifest — at least to people who have followed the Capitol riot and its aftermath closely, as opposed to those getting only the committee’s slant. I’ll focus on three of them.
First, there is what I’ll call “The Tale of Two Seditions.” The committee made much during Thursday night’s episode of the seditious-conspiracy charges that have been filed against members of the Proud Boys and the Oath Keepers. But because there was no cross-examination, the public was not informed that there is a deep divide between the committee and the Justice Department.
Essentially, seditious conspiracy is a criminal agreement to levy war against the United States and oppose the government’s authority by force. Obviously, the committee loves the sedition cases and the fact that DOJ has pressured some defendants into pleading guilty and cooperating. The pleas, as Chairman Thompson spun them, lend credence to the committee’s portrayal of Trump as the instigator of a violent insurrection.
Fine . . . except the Justice Department’s theory is that Trump was not the instigator. As I’ve explained (having prosecuted the last successful seditious-conspiracy case, against anti-American jihadist terrorists in the mid Nineties), if Trump is the instigator — if he, in Democratic parlance, incited an insurrection — then DOJ’s seditious-conspiracy cases have a big problem: The defendants can claim they were neither at war with the U.S. nor using force against the government; instead, they will argue, they were acting at the behest of the government’s chief executive — trying to save the United States and thwart corrupt elements within the government who were stealing the election from Trump.
It doesn’t matter that Trump’s “stop the steal” gambit was a con job. What matters is that the defendants believed it. In fact, that is the January 6 committee’s view of the matter. But that view undermines the Justice Department’s case. That’s why DOJ barely mentions Trump in the sedition cases, and has neither charged him nor named him as an unindicted co-conspirator.
To the committee, Trump is the driving force of seditious violence. To the Justice Department, he is merely a pretext for seditious violence that the Proud Boys and Oath Keepers would have carried out anyway. How much fun do you suppose a good defense lawyer would have pointing out that central contradiction? We’ll never know because the committee is not allowing its narrative to be tested . . . just proclaimed.
Second, there is Caroline Edwards, the very impressive Capitol police officer who testified about the bedlam that ensued when overmatched security forces struggled to fight off hundreds of rioters. Information-wise, there was nothing new here. But that’s okay. Again, the committee is entitled to lay out what happened in vivid detail through multiple witnesses.
There are, however, problems with Officer Edwards’s account. She is being used to promote the committee’s false narrative that police were not only injured but killed in the attack — or, at a minimum, died because of the attack. Thus did Edwards relate how she fought shoulder-to-shoulder with deceased Capitol Police Officer Brian Sicknick as they were sprayed with toxins by the rioters. In a strategic aside, Chairman Thompson had Edwards observe that the usual reaction to being sprayed is to turn red, but that she became alarmed because Sicknick instead turned “ghostly pale.” This is vague testimony, but you’re supposed to deduce from it that something must have happened in that confrontation with rioters, and that amorphous something must have triggered Officer Sicknick’s death.
Thompson would never have tried to pull this in an adversarial hearing. He’d have gotten his clock cleaned. The committee’s mendacity would have been easy to display while nevertheless showing Officer Edwards the respect she deserves. In about two minutes, a competent lawyer would have pointed out that (a) Sicknick was seen at police headquarters after the riot and told people that, though he got sprayed, he was in good condition; (b) the medical examiner concluded that Sicknick died of natural causes (two strokes) a day after the riot; (c) there is no evidence that the stroke was caused by the riot (the possibility cannot be discounted, but it’s the government’s burden to establish that, not an accused’s burden to disprove it); (d) the Justice Department has not charged anyone with killing Sicknick, though it has charged two rioters with assaulting him (and other officers, including Edwards); (e) the Justice Department’s charging papers do not even mention that Sicknick died, much less claim that the riot caused his death; (f) Sicknick’s remains were quickly cremated, so it is not possible to do further physical examination — the medical examiner’s report of death by natural causes is all we’ve got to go on; and (g) a month after the Capitol riot, by which time it was well known that initial press reports about how Sicknick died were erroneous, committee member Raskin, as the lead House prosecutor in Trump’s Senate impeachment trial, filed a pretrial brief that falsely claimed — based on the erroneous press reports that House Democrats failed to independently investigate — that Sicknick was killed by vicious blunt-force trauma (“The insurrectionists killed a Capitol Police officer by striking him in the head with a fire extinguisher”).
In the committee’s TV show, however, there was no chance that any of that information would be brought out. There was not even any pretense that Officer Edwards would be cross-examined. Thompson ended her testimony so the prime-time special could end right on schedule.
Third, there is the security situation at the Capitol.
There has already been an investigation by two Senate committees, last year, which found that the Defense Department’s tentativeness was colored by criticism of its response to the violent George Floyd protests. Moreover, the Senate found that other relevant security forces suffered from gross understaffing, lack of training, unavailability of equipment, and general incompetence at the command level in processing and relaying intelligence — including pre–January 6 information indicating that there could be trouble.
In addition, evidence has emerged in the Justice Department prosecutions that some of the protesters were waved into Capitol building by police. Meanwhile, Attorney General Merrick Garland has reportedly declined to answer Republican inquiries about the FBI’s involvement — specifically, did the bureau have informants or undercover agents who infiltrated groups of Trump supporters and encouraged them to storm the Capitol?
It should go without saying that none of this, however bad it may appear to be upon a full investigation, would excuse the behavior of President Trump, his “stop the steal” collaborators, or the rioters. Yet, the committee seems determined to steer its investigation away from these matters, which are raised incessantly by the Republicans whom Pelosi kept off the panel. To examine them would divert attention from Trump, raise questions about Pelosi and others (who worried about the “optics” of a robust security presence), and deflate the committee’s portrayal of the riot as an existential threat to democracy itself.
In a normal fact-finding process, experienced prosecutors and committee majorities know that you don’t get to win 100-0. The other side has some points to score, and they get to score them. If the process is rigged to prevent that, it undermines the integrity of the probe.
Speaker Pelosi keeps saying she wanted a probe similar to the (vastly overrated) 9/11 Commission investigation. Well, anyone who lived through that circus can tell you that it is a staple of such investigations to scrutinize whether a catastrophe could have been avoided or mitigated if the pertinent government officials had performed competently. It is perfectly legitimate to look into military, intelligence, and law-enforcement failures. No investigation worthy of the name would shrink from that responsibility. Avoiding government failures just makes the committee look — yet again — like it is exaggerating the riot and Trump’s misconduct. That would be foolish because the riot was bad and Trump’s behavior was condemnable. But foolish appears to be where this is headed.
It appears that the January 6 committee is planning another half-dozen hearings. I’d like to think that, once out of the limelight and back working normal daytime hours, the committee will get down to business, like a real bipartisan, adversarial committee. Except it’s not a real bipartisan, adversarial committee. It’s the Insurrection™ political narrative, brought to you by the same Democrats who gave you Collusion!