Nothing New in January 6 Committee’s Final Report — but That Doesn’t Make It Insignificant

Plowing through the entirety of the House select January 6 committee’s final report, all 692 pages plus appendices finally released last night, would take a long time. I’m reading it in manageable chunks, but I’m not in any great hurry. It is already obvious, just from the 134-page executive summary (with its 762 footnotes taking up another 59 pages), as well as dips into some of the subsequent, amplifying chapters, that there is nothing new here.

Don’t get me wrong: That is not a bad thing. It would be bizarre if the report were different from what the committee has been saying publicly for a year and a half, or if buried in its girth were some bombshell incident that the panel somehow forgot to spotlight in its high-profile public sessions — some of them held in prime-time after consultation with a former network television executive, and the last one of them occurring early this week, just days before the report was published.

I’ve been critical of the committee in recent months. There are a plethora of reasons for that, but chief among them has been its dogged determination to establish a criminal case against Donald Trump — or at least publicly project one through skewed presentations of its evidence. That is not to say that such a case is inconceivable. To the contrary, Justice Department prosecutors are struggling to conceive it. But prosecution is an executive function; a congressional committee is beyond its legitimacy when it acts like a grand jury.

The committee’s political antics could also undermine the Justice Department’s investigation. The Capitol riot evidence against Trump, from a criminal law perspective, is markedly weaker than the committee intimates (and, indeed, much weaker than would be a criminal prosecution based on the Mar-a-Lago documents). This is manifest, yet again, in the final report’s opening passages.

The executive summary juxtaposes contrite statements by Capitol riot defendants prosecuted for seditious conspiracy with selectively mined passages from Trump’s Ellipse speech in order to claim that the rioters believed they were acting on Trump’s orders. As usual, the committee elides mention of certain facts: that the Justice Department has not alleged that Trump conspired with these defendants, that Trump called for nonviolence, that there is no evidence of Trump’s urging — let alone ordering — anyone to commit a forcible act, and that a number of the seditious conspiracy defendants were acquitted (despite a Washington jury pool deeply antagonistic to the former president). To repeat the point our editorial made earlier this week, when the committee made its ballyhooed referrals of Trump to the Justice Department, a criminal prosecution would be difficult, and the panel makes it harder still by giving Trump the defense that a politicized, Democrat-dominated committee pressured the Biden Justice Department to indict Biden’s potential opponent in the 2024 election.

But enough beating that dead horse. It is completely legitimate for a House committee to act like a grand jury if it is conducting an impeachment investigation. To be impeachable, executive misconduct need not be criminally prosecutable — the standard of “high crimes and misdemeanors” refers not to penal crimes but “political crimes,” a phrase Hamilton used to connote significant abuses of the trust reposed in public officials. Still, many if not most such acts will also be prosecutable crimes, or enough on the penal periphery that they would warrant grand jury scrutiny. (Indeed, the Constitution — Article I, Section 3, clause 7 — expressly anticipates potential indictment and prosecution separate and apart from impeachment, removal, and disqualification from office.) With impeachment, though, the objective is not to prove discrete elements of crimes beyond a reasonable doubt, it is to demonstrate in the conjunction of action that a person is unfit for the presidency.

That is what the January 6 committee accomplished.

To be sure, Speaker Nancy Pelosi undermined the committee’s legitimacy by blocking Republican appointees and stacking the panel with rabid anti-Trumpers, not a single one of whom even feigned objectivity. This was foolish: The committee had a strong case. Vice chairwoman Liz Cheney and a section of the final report emphasize that the most damning testimony came from Republicans. But they miss the significance of this, contending that it shows that the exclusion of the Republicans’ chosen committee members was trivial. To the contrary, having McCarthy’s senior appointees on the panel, pro-Trumpers Jim Jordan and Jim Banks, would have demonstrated that Trump’s actions were so indefensible that his defenders were left defenseless. If they’d tried to lay a glove on such witnesses as Bill Barr and Matt Pottinger — something Jordan and Banks are smart enough to have avoided — they’d have embarrassed themselves, derivatively making Trump look even more unfit.

The presence of members appointed by McCarthy would have promoted bipartisan legitimacy. It would have made the committee stronger, the same way that the wearing down of President Nixon’s sympathizers under the weight of the Watergate proof so strengthened Congress’s impeachment proceedings that Nixon resigned — right after Republican leaders informed him his support had collapsed.

All that said though, the committee constructed an ironclad case that Trump was faithless to the Constitution; that he egregiously abused his power and the prestige of the office; that he should have been impeached, removed, and disqualified from holding the presidency or any other public office; and that his future election ought to be out of the question. You could say that this told us nothing we didn’t already know. That is true. You could also say the lopsided majority of the country had long ago made up its mind about Trump and January 6, and that, therefore, we did not need to revisit them — in a manner conveniently timed for Democrats to make Trump, rather than the doddering incumbent president, the focal point of the 2022 midterms. That is also true. And yet . . . and yet.

Reading the committee’s final report, much like watching its highly choreographed public hearings, is a jaw-dropping experience. It is one thing to know, in some general way, that Trump’s behavior from the lead-up to the 2020 election through the aftermath of the Capitol riot was despicable. It is quite another to read page after page of the gory, accumulated details.

It’s all here: The premeditation to declare electoral victory regardless of the outcome, even as he trailed in the polls and defeat looked highly likely. The adamant claim of victory when it was clear not only that he had lost but that he knew he had lost. The ridiculous lies about systematic fraud — everything from implausible overseas digital manipulation of voting machines to old-fashioned ballot-box stuffing. The exploitation of the influence of the presidency, which caused millions of supporters to believe the election must have been stolen if the president said so — catalyzing their rage. The demagogy about the “stolen election,” repeated incessantly even after his most knowledgeable campaign advisers and administration officials told him he’d lost fair and square, with no material fraud. The brow-beating of Justice Department leadership, state legislators, and state election officials in futile efforts to co-opt them into his machinations. The urging of throngs of supporters to descend on Washington, and ultimately on Congress, on January 6 — which, even if the committee is disingenuous in framing these solicitations as criminal incitement, was as dangerously reckless as it gets. The promotion of, and doubling-down on, a farcical legal theory that the vice-president could legitimately invalidate or postpone the counting of state-certified electoral votes — a theory that betrayed the presidential oath to preserve the Constitution, which gives the states primacy over presidential elections. Not just the encouragement of protesters to march on Congress to intimidate lawmakers into violating their constitutional duty, but the lunatic, foiled attempt to lead the protest personally — i.e., the determination to carry out a direct presidential interference in the carrying out of a solemn congressional duty, in gross disregard of the Constitution’s separation of powers. The tweet attacking Vice President Mike Pence even after Trump knew the storming of the Capitol had begun. The shocking dereliction of duty in refusing to use his influence to make his supporters stand down and to take other steps to end the uprising — indeed, Trump’s heinous statement of solidarity with the rioters, delivered only after he sat transfixed for hours by television coverage of the mayhem.

Yes, we knew all of this. But it is quite something else to see it marshaled to chilling effect in a congressional report.

As I’ve observed several times, I believe the January 6 committee has been the impeachment investigation that the House unpardonably failed to do in the immediate aftermath of the riot — when, instead, Democrats politicized the process in order to demonize all Trump supporters, a fiasco that yielded a poorly conceived, error-ridden impeachment article that failed to plead the worst of Trump’s misconduct. The failure to competently impeach Trump led to his Senate acquittal and the consequent failure to disqualify him.

Consistent with the reality that the committee has, in essence, been an impeachment committee (though with no impeachment mandate), it strained to the very end for novel ways to rationalize Trump’s de jure disqualification. The latest, embodied in this week’s referrals, is the assertion that Trump is guilty of felony incitement of, or assistance to, an insurrection. I’ve already catalogued the legal and factual flaws in the committee’s theory, and I won’t belabor that record. Suffice it to say that the January 6 committee, in its role as a quasi grand jury, fails to make an indictable case.

That’s okay by Democrats, though. While nothing would please the committee’s anti-Trump Republicans, Cheney and Adam Kinzinger, more than Trump’s de jure disqualification, committee Democrats — like Democrats nationwide, very much including in the Biden White House — do not want Trump disqualified as a matter of law. They want to run against him in 2024. That’s their most certain path to victory. For them, it is the best of all worlds that Trump is “merely” de facto disqualified by his role as the driving force behind the events of January 6. No matter what we may think of the committee’s political heavy-handedness, its report makes that case.

Too bad that, thanks to that heavy-handedness, half the country won’t give the report the time of day.