Published by The Lawfare Institute
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On Jan. 6, when a mass of rioters confronted a group of law enforcement officers in the U.S. Capitol, they shouted a simple message: “You’re outnumbered. There’s a … million of us out there, and we are listening to Trump.”
Shortly before, the president had admonished his supporters to march on Congress. He told them that unless they fought “like hell,” they would no longer have a country, as lawmakers mere steps away were set to certify an electoral victory for the wrong man.
Democrats lost no time blaming Trump for the violence and death that followed his remarks. In an impeachment resolution introduced on Jan. 11, they charged the president with inciting an insurrection. For the second time in just 13 months, the House Judiciary Committee outlined the factual and constitutional imperative of impeachment. The committee argued that Trump’s “continued hold” on the presidency—“even for only a few more days”—constituted a “clear and present danger.”
The historic second impeachment vote that followed and the start of the Senate trial, the first of a former president, have captured public attention. But the understandable focus on those proceedings has obscured the breadth of work Congress has undertaken in other areas to confront and respond to the assault on Jan. 6.
Even as representatives gathered themselves to impeach Trump and senators prepared again to assume the role of jurors, they began to dedicate significant energy toward investigating the insurrection itself. Committees in both the House and the Senate have opened probes into the Capitol assault. And lawmakers have started to consider whether and how to discipline certain colleagues for feeding the lie that led to the Jan. 6 violence—the false notion that widespread fraud and irregularities in the 2020 presidential election allowed Joe Biden to cheat his way to victory.
Investigations in the House
The majority of congressional investigative work has thus far occurred in the House, as the Senate remained out of session between Jan. 6 and Jan. 19, and committee chairmanships did not transition from Republicans to Democrats until after the upper chamber passed an organizing resolution on Feb. 3.
Two main probes have emerged in the people’s body. The first and narrower of the two, initiated by the House Appropriations Committee on Jan. 7, is examining law enforcement’s failure to secure the Capitol and its response to the building’s breach. Rep. Tim Ryan, who helms the House Appropriations Legislative Branch Subcommittee—which oversees funding for the Capitol Police—stated that the subcommittee will hold “hearings to directly question key leaders about what went wrong.”
On Jan. 26, the full Appropriations Committee received a closed briefing on the security failures of Jan. 6 from a number of law enforcement and security officials, including the acting chief of Capitol Police, the acting House sergeant-at-arms, the former Army secretary, the commanding general of the D.C. National Guard, the acting chief of D.C. Metropolitan Police, the assistant director of the Secret Service, the assistant attorney general for national security, the acting U.S. attorney for D.C. and the assistant director of the FBI’s Washington Field Office. After the briefing, Appropriations Committee Chair Rosa DeLauro vowed to continue to pursue answers to questions surrounding the Capitol breach. But the committee has encountered at least some difficulty in this regard. Ryan, for instance, admitted that he has struggled to secure information from Capitol Police leadership, which he described as a “black box.”
The second and broader House probe is a joint venture of the House Permanent Select Committee on Intelligence and the House Judiciary, Homeland Security, and Oversight and Reform committees. In a Jan. 16 letter, the committees announced that they had opened a “review” of “the events of January 6 and related threats against the Nation’s peaceful transition of power.”
The letter specified that the committees’ investigation will follow three inquiries. First, the committees seek to determine what federal law enforcement and the intelligence community knew about threats of violence before, on and after Jan. 6; whether, how, and with whom law enforcement and intelligence entities shared threat information; whether those entities withheld or delayed the dissemination of relevant information; whether the assault on the Capitol had “any nexus to foreign influence or misinformation efforts”; and whether and how “foreign powers” have attempted “to exploit and aggravate the crisis.” Second, the committees will examine whether individuals who currently or formerly held security clearances or positions in U.S. defense, justice and national security agencies took part in the assault. And third, the panels will consider appropriate policy “and other” responses.
To facilitate their investigation, the House Intelligence, Judiciary, Homeland Security, and Oversight and Reform committees have requested a series of briefings on an array of topics from the FBI, the Office of the Director of National Intelligence, the National Counterterrorism Center (NCTC), the Department of Homeland Security Office of Intelligence and Analysis, and other relevant Homeland Security components. The panels asked that these briefings—seven total—take place over the course of roughly one month, between Jan. 22 and Feb. 19. Although the committees are conducting their investigation jointly, not every committee will attend every briefing. Of the seven requested briefings, four are intended for the Intelligence Committee alone. All four of the committees will attend the other three briefings.
The descriptions of the briefings outlined in an annex to the committees’ Jan. 16 letter offer further insight into the specifics of their probe. For the week of Feb. 1-5, the Intelligence Committee requested a briefing from the FBI, Homeland Security and the NCTC on how the National Vetting Center and the Terrorism Screening Center vet and screen domestic violent extremists (DVEs). For this week, Feb. 8-12, the committee has asked the Office of the Director of National Intelligence for a briefing on the effectiveness of the “security clearance and background investigation processes intended to identify and mitigate threats posed by violent extremists, including the ongoing transition to recurrent vetting and the integration of rigorous checks of open source information and social media.” The committee has also requested a briefing from the NCTC this week on how the agency aids FBI and Homeland Security efforts to counter DVEs. The committee flagged its interest in any information the NCTC might have about “transnational links between DVEs and other extremists” and whether the agency is sharing that information with the FBI and Homeland Security.
In addition to briefings, the four committees have requested that the aforementioned executive branch agencies produce all intelligence and documents “that refer or relate to events that could or ultimately did transpire on January 6, 2021, or refer or relate to threats in connection with the U.S. presidential inauguration.” The committees’ letter specified that “[a]ll intelligence” means “raw or finished” products. They also noted that these requests for documents and briefings reflected only an initial ask; more will come as the investigation continues.
House investigators have begun to make requests of the private sector, too. On Jan. 14, Rep. Carolyn Maloney, chair of the House Oversight and Reform Committee, sent a spate of letters to 27 bus, car rental and hotel companies. The letters note that the Trump supporters who attended the “Save America” rally and assaulted the Capitol “relied on a range of companies and services to get them there and house them once they arrived,” effectively “hijack[ing]” those services “to further the January 6 attacks.” To ensure companies do not inadvertently “facilitate violence or domestic terrorism” again, Maloney made three requests. First, she called on the companies to develop and implement “additional screening measures” to determine whether a patron might use their services in furtherance of a violent end. Second, she demanded that the companies “[r]etain all records regarding service requests and reservations from January 1 to 31, 2021,” should those records be needed in congressional or law enforcement inquiries. And third, she asked the companies to transmit to the House Oversight and Reform Committee “all company policies and procedures currently in place or being developed” to prevent their services from enabling further plans to commit violence.
Maloney also has expressed interest in learning more about the role Parler, a social media service used by many Trump supporters, played in the Jan. 6 assault. In a Jan. 21 letter to the FBI, Maloney requested that the bureau conduct, as part of its broader probe of the events of Jan. 6, a “robust examination” of how Parler may have facilitated the planning of the assault and incitement of violence. And on Feb. 8, she issued a letter to Parler’s CEO demanding the production of documents and communications related to the company’s finances, business agreements, and ties to foreign entities. Both letters sought information specifically about links between Parler and the Russian government. After Amazon Web Services deplatformed Parler, the site resurfaced on an IP address owned by a Russian web service with ties to the Kremlin and the country’s Ministry of Defense.
Additionally, some House members have advocated for internal probes. In a Jan. 13 letter, for instance, 34 Democratic representatives led by Rep. Mikie Sherrill demanded that the acting House and Senate sergeants-at-arms investigate Sherrill’s explosive charge that some congressional Republicans led “reconnaissance” tours the day before the assault on the Capitol, possibly helping Capitol stormers case the building. In the letter, the Democratic lawmakers argued that the Jan. 5 tours amounted to a “noticeable and concerning departure from the procedures in place as of March 2020 that limited the number of visitors to the Capitol.” They emphasized that the groups of visitors “could only have gained access to the Capitol Complex from a Member of Congress or a member of their staff.” On Jan. 15, a spokeswoman for Capitol Police confirmed that Sherrill’s allegation is being investigated but declined to identify the law enforcement agency conducting the inquiry or provide any further information.
Despite initiating probes of the Capitol assault through congressional committees, lawmakers have also considered establishing a national commission to investigate the events of Jan. 6. In the House, both Democratic and Republican lawmakers have introduced bills to create such a commission. Rep. Rodney Davis, a Republican and the ranking minority member on the House Administration Committee, offered a brief overview of his proposal during a procedural debate on whether to move forward with impeachment. He argued for a bipartisan commission, comprising five Republicans and five Democrats chosen by the House and Senate leadership, which would author a report for Congress and the president outlining its findings and recommendations. Rep. Tom Cole, a Republican supporter of the proposal, compared the model to the 9/11 Commission. Both representatives framed the commission as an alternative to impeachment, however—urging “no” votes on the resolution to begin considering Trump’s impeachment (H. Res. 41) so that the House might proceed with their proposal instead.
Rep. Jamaal Bowman and Eleanor Holmes Norton, D.C.’s nonvoting delegate to the House, also have introduced bills (H.R. 276 and H.R. 410, respectively) to establish a national commission to scrutinize the Jan. 6 assault and develop guidance to prevent similar violence in the future. Bowman’s proposal, titled the Congressional Oversight of Unjust Policing (COUP) Act, would create a 19-member commission—comprising eight individuals appointed by House and Senate leadership; eight chosen by the Congressional Black, Hispanic, Asian Pacific American and Progressive caucuses; and three picked by the president. In addition to probing the security failures of Jan. 6, the Bowman commission would examine, among other things, whether Capitol Police officers have ties to white supremacists or other extremists, and whether “conscious or unconscious bias was a factor in the gross miscalculation of the risk posed by protestors to Members of Congress and staff” on Jan. 6.
In that regard, and in its commitment to scrutinizing the conduct and priorities of Capitol Police outside the events of Jan. 6, Bowman’s proposal reveals itself to be broader in scope than Davis’s. It is unclear how Norton’s proposal compares to those bills, as hers does not yet have legislative text.
Investigations in the Senate
Although the Senate did not reconvene until Jan. 19, the rough contours of its investigative efforts have begun to take shape, too. In a Jan. 8 press release, Democratic Sens. Gary Peters and Amy Klobuchar, along with their Republican colleagues Sens. Rob Portman and Roy Blunt, announced that their committees—the Senate Homeland Security and Governmental Affairs Committee and the Senate Rules and Administration Committee—would “hold hearings on and conduct joint oversight of” the security failures that enabled the Capitol assault. The senators cited their committees’ jurisdiction over Capitol operations, homeland security and oversight in justifying the role they will play in probing the events of Jan. 6.
On Jan. 28, Klobuchar and Blunt, who helm the Rules Committee, publicly released letters they issued on Jan. 11 to the Architect of the Capitol, the acting Capitol Police chief, the Capitol Police Board, the acting Senate sergeant-at-arms and the former Senate sergeant-at-arms, who resigned in the wake of the security failures of Jan. 6. The letters sought a wide array of documents and information from the recipients, including telephone records and recordings, emails, text and instant messages, internal and public memoranda, and threat assessments. The letters also requested the production of any memoranda of agreement or understanding between the recipient and other federal, state or local agencies, and all correspondence to and from the recipient, including correspondence concerning ongoing investigations. That the committee waited 17 days to release these letters suggests that there is much the public still does not know about the status and scope of ongoing congressional probes.
This proved true again on Feb. 8, when the top Democrats and Republicans on the Senate Intelligence, Judiciary, Appropriations and Armed Services committees joined the bipartisan heads of the Homeland Security and Governmental Affairs and Rules committees in issuing 22 agencies (both federal and D.C. metropolitan) a letter requesting information related to the Capitol assault. The request sought responses to roughly 20 batches of questions. These included whether the recipient federal and local agencies had previously planned for, or conducted tabletop exercises in anticipation of, violence or large-scale protests at the Capitol; if and when the agencies established “an operations center” to monitor the Jan. 6 joint session of Congress; whether and when they received a request for assistance on Jan. 6; and whether the agencies altered their planning for the Jan. 6 joint session in response to “statements or input from any local, state, or Federal elected official.” Although the press release announcing the Feb. 8 letter indicates that the Homeland Security and Governmental Affairs and Rules committees remain the lead panels conducting the Senate investigation, it was not clear until that day if other Senate committees were assisting them.
Despite broad bipartisan support for the Senate inquiry, there remains some disagreement among senators about who in their ranks should be allowed to conduct the probe. Some members have expressed alarm that the same colleagues who sowed doubt about the integrity of the 2020 presidential election and objected to the certification of the Electoral College results could now play a role in investigating the riot. In a statement, Democratic Sen. Sheldon Whitehouse asserted that Sens. Ted Cruz, Josh Hawley and Ron Johnson—the former two of whom led the efforts in the Senate to overturn the election—“need to be off all relevant committees reviewing this matter” due to their “massive potential conflict of interest.” Both Johnson and Hawley sit on the Homeland Security and Governmental Affairs Committee, while Cruz sits on the Rules Committee.
Ethics Investigations and Disciplinary Proceedings
Members have also pondered whether to discipline their colleagues who supported Trump’s efforts to overturn the election and spread disinformation about the election’s integrity. Congressional Democrats have called for ethics investigations of varying scope, and for the censure and expulsion of the loudest proponents of overturning the election results—primarily Cruz and Hawley in the Senate and Reps. Louie Gohmert and Mo Brooks in the House.
Calls for censure and ethics probes began even before the assault on the Capitol, in the earliest days of January when efforts to “Stop the Steal” reached a crescendo. In a perhaps prescient push for congressional sanctions just one day before the riot, Rep. Debbie Wasserman Schultz introduced a resolution to condemn and censure Gohmert, a Texas Republican who initiated a lawsuit seeking to give Vice President Mike Pence the expansive authority to reject Electoral College votes cast for Biden. In a Jan. 1 interview with Newsmax, a snippet of which Wasserman Schultz’s resolution quotes, Gohmert stated that a federal court’s dismissal of his suit conveyed to Trump’s supporters that the judiciary would offer them no remedy, leaving them no other means to ensure Trump’s victory than to “go to the streets and be as violent as Antifa and [Black Lives Matter].” The resolution castigates Gohmert, describing his remarks as part of a “dangerous pattern of signaling to American citizens that they should consider using violent means to achieve their goals.” It warned of the “tragic consequences” that might result from “continued efforts to cast doubt” on the outcome of the election. That was Jan. 5.
The day before, Rep. Brendan Boyle introduced a resolution to require the House Ethics Committee to investigate whether representatives who made “false written allegations that fraud occurred in the conduct of the November 2020 Presidential election” violated House rules, including the House Code of Official Conduct. Although the resolution did not suggest which House rules might have been violated, the Code of Official Conduct, codified at House Rule XXIII, provides that members must “behave at all times in a manner that shall reflect creditably on the House.” This language seems to give the Ethics Committee broad discretion to review representatives’ conduct. If the panel finds that a representative did violate House rules, Boyle’s resolution recommends that the committee issue appropriate sanctions, up to and including by suggesting that the House vote to expel the offending member.
After Jan. 6, sanctions resolutions in the House became even more pointed. On Jan. 11 and 13, Reps. Tom Malinowski and Henry Johnson, respectively, introduced resolutions calling for Brooks’s censure and expulsion from the House. Citing Brooks’s remarks on social media and at the “Save America” rally that preceded the assault on the Capitol, Malinowski’s resolution asserted that the Alabama Republican had “encouraged and incited violence against his fellow Members of Congress.”
Rep. Cori Bush called for a sweeping ethics probe in a separate resolution. Her proposal would require the House Ethics Committee to investigate and release a report on whether “any and all actions taken” by the representatives who attempted to reverse Biden’s victory “violated their oath of office to uphold the Constitution” or House rules. If members did violate their oath, the resolution continued, the ethics panel should consider whether those members “should face sanction, including removal from the House.”
With the exception of Boyle’s proposal to investigate false written allegations of election fraud, which the Pennsylvania congressman introduced on his own, the ethics resolutions listed above enjoy as few as 21 co-sponsors and as many as 54. But it remains unclear if or when those resolutions will be brought to the floor for a vote. Moreover, affirmative votes on the Bush and Boyle resolutions would merely catalyze the start of Ethics Committee investigations, under Ethics Committee Rule 14(a)(5). They would not result in the immediate discipline of any member.
The House Ethics Committee’s rules indicate that two other circumstances could trigger the start of a committee probe here. According to Committee Rule 14(a)(3), the ethics panel may initiate an investigation “on its own initiative.” And per Rule 14(a)(1), the committee “may exercise its investigative authority” when it receives a complaint from a member “transmitted directly to the Committee.” No public reporting currently suggests that the committee has received such a complaint regarding the conduct of Gohmert, Brooks or other members who spread election disinformation.
In the Senate, however, lawmakers took exactly that course of action—the filing of a complaint—to make their demands for the censure and expulsion of Cruz and Hawley concrete. In a Jan. 21 letter to the Senate Ethics Committee, Whitehouse, along with Sens. Richard Blumenthal, Sherrod Brown, Mazie Hirono, Tim Kaine, Tina Smith and Ron Wyden, formally requested that the panel investigate whether Cruz and Hawley violated the chamber’s ethics rules. The group argued that by “proceeding with their objections” to the Electoral College results even after the assault on the Capitol, “Cruz and Hawley lent legitimacy to the mob’s cause and made future violence more likely.”
The letter contended that the question before the Senate ethics panel is “not whether Senators Hawley and Cruz had the right to … object to the electors”—they clearly did. Rather, the relevant issue is “whether the senators failed to ‘[p]ut loyalty to the highest moral principles and to country above loyalty to persons, party, or Government department,’” as the Code of Ethics for Government Service and the Senate Ethics Manual require.
The Democratic senators asked the Ethics Committee to look into six questions regarding Cruz and Hawley’s conduct. Among those are whether the senators or their staff coordinated, or were in contact, with the organizers of the “Save America” rally; whether the senators knew other members of Congress to be in contact with the event’s organizers; whether the senators “took any action that encouraged the insurrectionists’ actions”; and whether the senators or their offices engaged in any other “unethical or improper behavior” or “criminal conduct.”
According to the Senate Ethics Committee’s rules of procedure, the panel’s receipt of a complaint—like the senators’ letter—triggers the start of a “preliminary inquiry.” That inquiry, governed by Committee Rule 3, seeks to uncover whether there is “substantial credible evidence” of an ethics violation, and may involve interviews, depositions, subpoenas and an opportunity for the individuals named in the complaint to respond. If the committee determines by an affirmative vote of at least four of its six members that a preliminary inquiry has revealed substantial credible evidence of an ethics violation, it can take one of two actions. If it finds the violation was “inadvertent, technical, or otherwise of a de minimis nature,” the committee may vote to send the respondents “a public or private letter of admonition, which shall not be considered discipline.” But if it determines the violation was more egregious, the committee may vote to commence a further “adjudicatory review.”
An adjudicatory review—conducted pursuant to Committee Rule 4—precedes the submission of an Ethics Committee report to the full Senate on the allegations at issue, and affords the individual named in the opening complaint the right to a hearing. In its report to the full Senate, the Ethics Committee must detail its factual findings and outline why it has decided, or declined, to recommend disciplinary action.
In their Jan. 21 letter, the Democratic senators contended that until the Ethics Committee completes this process, “a cloud of uncertainty will hang over [Cruz and Hawley] and over this body.” But the possibility that the Senate or the House might expel a member is quite remote. To do so would require a two-thirds vote of the chamber, which in turn would require the support of a prohibitively large contingent of Republicans—17 in the Senate and 69 in the House. Moreover, Hawley has filed a countercomplaint in response to his Democratic colleagues’ letter, promising to drag the process out further.
Navigating the aftermath of ethics investigations and formal sanctions will present its own set of challenges for lawmakers. Given the unlikelihood of the expulsion or resignation of Cruz, Hawley, Gohmert, Brooks or other vocal proponents of overturning the election results, members of Congress will have to determine if or how to maintain a relationship with those colleagues. They will have to weigh whether to accept—as the final word on the matter of those individuals’ conduct—a formal rebuke short of expulsion. And if they do not believe such a sanction is proportional to the severity of the offending members’ transgressions, they will have to decide what, if anything, to do about it. These questions are not novel. But they will be difficult to answer well and thoughtfully amid the torrent of other work Congress confronts.