From start to finish, the committee has been an extended exercise in empty political theater.
From start to finish, the committee has been an extended exercise in empty political theater.
I t takes only a few minutes to walk from the Capitol to the E. Barrett Prettyman Federal Courthouse in Washington, D.C. When it comes to perspectives on January 6, 2021, however, the two buildings might as well be on different planets.
That was the big takeaway from Thursday’s meeting of the House January 6 committee. Or at least, it would have been the big takeaway if the committee had permitted cross-examination, alternative perspectives, and adversarial debate — the hallmarks of a real fact-finding process. Alas, the committee is an exercise in political theater, with members all handpicked by Speaker Nancy Pelosi and the proceedings choreographed by Democrats. It is nominally bipartisan, but not substantively so, for it brooks no diversity of opinion on the only issue that matters: Donald Trump. When it comes to January 6, he is the center of the storm, the commander who ordered his followers to attack the Capitol.
In the courtroom in the Prettyman building — the one where five defendants tied to the Oath Keepers militia group are currently standing trial on sedition charges in connection with the Capitol riot — it’s a different story. Donald Trump is not the center of the storm; he’s more like a passing cloud. According to the Justice Department, Trump did not order an insurrection; his “stolen election” blather was just a pretext for an attack on the government that the Oath Keepers were scheming to conduct anyway.
In the courthouse, there is drama but not theater. Trials are not choreographed, because the adversarial process cannot be choreographed. A criminal trial’s strategies and rhythms are driven by evidence and the clash of arguments about what to make of it. If you tried to substitute propaganda for proof, talking points for corroborated testimony, it would be a rout: The political narrative would melt in the crucible of confrontation and rules of admissibility.
In the courtroom, Donald Trump has never been charged with a crime of violence arising from the Capitol riot. Insurrection is a federal crime, but he hasn’t been indicted for that (nor has anyone else, for that matter). The closest thing to insurrection that has been charged is seditious conspiracy — the crime of agreeing to levy war against the United States or oppose its government by force — but Trump has not been accused of that either. While the above-referenced Oath Keepers have, as have several members of another militia group, the Proud Boys, Trump has not even been named as an unindicted co-conspirator.
In fact, the Justice Department has not named Trump as an unindicted co-conspirator in any of its 800-odd January 6 prosecutions. When January 6 defendants have tried to defend themselves by shifting the blame to Trump — exactly the defense you’d expect if the January 6 committee’s depiction of the Capitol riot were accurate — the Justice Department has aggressively pushed back. And judges — most of whom are no fans of Trump — have agreed: Defendants have been stymied when attempting to argue that Trump made them do it, that they stormed the Capitol because that’s what they believed Trump wanted, that they expected Trump to invoke the Insurrection Act and call them into service as a militia, and that they need to call Trump as a witness because he is central to the events of January 6.
To repeat what I’ve said many times, I believe President Trump should have been impeached over his actions in the two-month run-up to the Capitol riot, and his derelictions of duty once the riot broke out. The uprising happened so late in Trump’s term, Democrats saw no practical way to impeach and remove him, so they exploited the impeachment process for political purposes — to limn Trump supporters and Republicans generally as “domestic terrorists” motivated by racism.
The Democrat-controlled House did no meaningful impeachment investigation and then incompetently drafted an article that omitted Trump’s most damning misconduct while focusing on something that was legally dubious: “incitement of insurrection.” The January 6 committee is the House’s belated effort to do the impeachment investigation that it failed to do back in January 2021.
If that’s all the committee was — an attempt to correct the failures of the impeachment process — it would have been a completely legitimate undertaking (though whether there’d have been a political appetite for it is a different question). But unable to help themselves, Democrats politicized the committee, too, to everyone’s detriment. The riot was a disgraceful blight on American history, and it thus cried out for a truly bipartisan congressional investigation in which there were real hearings — the kind of traditional, adversarial, credible fact-finding process that Americans across the political spectrum could accept as legitimate.
Democrats instead opted for a show. They even brought in a network-television executive to help them produce it and aired a couple of episodes in prime time. Nonetheless, there remains a gaping hole in their case: They lack evidence that Trump intended a violent riot at the Capitol, much less that he ordered one.
Did he want a boisterous, intimidating crowd to put pressure on Vice President Pence and members of Congress to go along with his half-baked theory that Republicans could object to some states’ electoral votes, and that Pence could either refuse to count them or send the matter back to the disputed states for further investigation? I don’t think there’s any doubt that he did. And that is an undermining of the Constitution, an attack on the states’ primacy in the conduct of presidential elections, an indefensible interference by the executive in the constitutionally mandated congressional counting of electoral votes, and a general failure to see to the faithful execution of the laws. That’s why Trump should have been impeached and disqualified from seeking the presidency in the future. That’s why he is rightly deemed uniquely responsible for what unfolded. Yet, it doesn’t make him criminally culpable for what unfolded.
The committee has thus run its course. If the point was to highlight that Donald Trump is unfit for the presidency, committee members did that — though they undercut their case by politicizing it. They did not establish, however, that Trump ordered a violent attack, just that he was recklessly irresponsible in creating the conditions for one, and then egregiously failed to use his influence and power to put a prompt stop to it once it was underway. They did not prove the multi-prong conspiracy they alleged at the start of their summer episodes; they showed that Trump couldn’t admit defeat, wanted to remain in office, and lurched from one farcical gambit to the next, hoping against hope that something would gain traction but knowing deep down that nothing would. This was not a sophisticated enterprise; it was a tantrum.
The committee’s leitmotif that our democracy was hanging by a thread on January 6 is laughable — particularly given the blind eye Democrats turn to the lethal violence of the radical Left. There was never any chance that the election was going to be overturned. The courts rejected Trump’s many attempts to make that happen and exposed that his lawyers had no proof of massive, actionable fraud. Not a single state actually considered revisiting the results of its popular election. Not a single one of the so-called fake-elector slates was certified. The notion of having the military seize voting machines was so lunatic that even Trump rejected it. Trump didn’t try to recruit the military into his erratic machinations because he knew he’d be turned down flat — as he was by the Justice Department.
Yes, the more than 100 House Republicans who joined in Trump’s objections to the counting of electoral votes, and the handful of GOP senators who supported a temporary pause for an audit of the election based on no evidence, disgraced themselves. But theirs was a cynical exercise: They knew they didn’t have the votes to actually overturn the election. They were just signaling to the Trump base that they were on the “right side.” If there hadn’t been a riot, the appalling stunt would have been memory-holed, just like we’re not supposed to remember January 6 committee chairman Benny Thompson’s baseless objection to electoral votes for George W. Bush in January 2005, committee member Jamie Raskin’s baseless objection to electoral votes for Trump in January 2017, and the Democrats’ mulish insistence that Stacey Abrams “won” the 2018 Georgia gubernatorial election that she actually lost by 50,000 votes.
Vice President Pence disavowed any power to rig the counting, and for that he should be lauded. But let’s be real: It was an easy call, because he obviously didn’t have the power to do what Trump was asking him to do. If he had tried to do anything as maniacal as claiming such power, a solid bipartisan majority of the Congress would have shut him down. He knew that. Everyone knew that.
What is too bad about the January 6 committee is that, for all its members’ odes to the majesty of the Constitution, they seem to see it as a weak and fragile thing. In point of fact, its strength and genius were never more apparent than on January 6, 2021. That day and the two months leading up to it reaffirmed that neither a single, willful man nor a harebrained scheme can steal an American election. The Constitution’s horizontal and vertical separation of powers and its diffusion of authority ensure that schemers cannot control all of the relevant actors. The impossibility that any one actor or group of actors could pull off a coup gives every actor an incentive to oppose anyone who tries.
Hoping to end with a bang, the committee voted to do what the judges presiding over January 6 cases would not permit charged defendants to do: subpoena Trump for testimony. At this point, it is theater. It is a step the committee could’ve taken months ago, but didn’t, because members knew that it would bog them down in controversy and litigation. The Justice Department has always taken the position that presidents have absolute immunity from congressional subpoenas because the Framers did not want the executive to be subservient to the legislature. Trump is no longer president, but a congressional committee’s subpoena to a former president to grill him over his actions as president would bludgeon the separation of powers, putting every sitting president on notice that the legislature could interrogate him later for the actions he takes now — exactly what the Framers wanted to avoid. This specter was always bound to make any Trump subpoena the subject of a lengthy court fight. Knowing that such a subpoena would be seen by many not as Trump’s comeuppance but as a subversion of the Constitution’s structure, the committee waited to issue it until, as a practical matter, there was no time left to debate its enforcement. Congress is not in session again until after Election Day, after which there will be a few lame-duck days of mischief before — assuming they win back the House as expected — Republicans retake the chamber and immediately disband the committee.
Symbolic though it may be, the issuance of the subpoena still raises a number of obvious questions. Since committee members announced with great fanfare at the start of their proceedings that Trump was the instigator of the riot — and spent all afternoon Thursday claiming that they’d already proven their case against him — why is his testimony even necessary at this point? If Trump is suddenly an essential witness — after the committee let over a year go by without trying to subpoena him — how can the committee issue the final report it has been promising without interviewing him, as it surely won’t get the chance to do? And finally, since it is well known that Trump is the subject of an active criminal investigation in which a federal court found probable cause to believe that three felonies had been committed and issued a warrant to search his residence — which search led to the seizure of additional incriminating evidence — why would the January 6 committee think he’d agree to testify when anything he says can be used against him in that case?
If none of this makes sense to you, don’t worry — it’s not supposed to. The subpoena gambit was the last act of a months-long political theater. If you want the reality of an actual fact-finding process, you’ll have to take that walk from the Hill down to the courthouse.