Published by The Lawfare Institute
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The House of Representatives is slated to vote this week on a bipartisan deal from the House Homeland Security Committee to create a 9/11-style commission to investigate and report on the Jan. 6 insurrection. Despite the fact that the proposal addresses the concerns he raised in February about a commission, House Minority Leader Kevin McCarthy came out against the deal Tuesday morning, so expect the bipartisanship behind its coming House passage to be modest. And the bill’s prospects in the Senate, where it needs 60 votes to pass, are uncertain as well.
That said, the agreement is a breakthrough of sorts. It represents the first bipartisan agreement concerning accountability for the events surrounding Jan. 6 since the votes to impeach and remove President Trump, both of which united all Democrats with a handful of Republicans. And it represents a credible start for a public investigative commission to report broadly on the disaster and how it came to be.
Whether that start proves a false one will depend on whether Congress can fix certain glaring problems in the legislation, whether it can move the legislative ball into the end zone on a divisive piece of public policy, and critically, whether the commission is populated and staffed with individuals committed to its mission.
The bill is currently slated to come up for a vote in the House on Wednesday, May 19. In addition to McCarthy announcing his opposition to the plan, House Minority Whip Steve Scalise, after initially indicating that Republican Party leaders would not be formally whipping against the bill, altered course somewhat and announced that he would be recommending a no vote—short of wrangling votes but still a clear signal. While Democrats can pass the measure on their own—and may well get between 30 and 50 Republicans to vote with them—the bill will also need GOP support to overcome the threat of a filibuster in the Senate. So far, Republican senators’ positions are mixed. The degree of bipartisanship as the bill comes out of the House, therefore, matters—potentially a lot—in terms of the signal it sends to senators.
The House Homeland Security Committee agreement appears to be self-consciously modeled on the 9/11 Commission. In their announcement of the commission, Homeland Security Committee Chair Bennie Thompson and Ranking Member John Katko twice compared their effort to the 9/11 Commission. Reading the draft bill alongside the legislation establishing the 9/11 Commission, the parallels are obvious. The bills use similar language and structure and, in many places, the Thompson-Katko legislation seems to have taken phrases right out of the 9/11 Commission bill.
In another echo of the 9/11 Commission, the new body is charged with issuing a report containing recommendations for “corrective measures” to prevent future acts of “terrorism.” The legislation specifies that the new commission must also include recommendations on how to “improve the security posture of the United States Capitol Complex while preserving accessibility of the Capitol Complex for all Americans, and strengthen the security and resilience of the nation and American democratic institutions against domestic terrorism.” As part of that work, the committee will examine a broad range of questions, including the work of intelligence and law enforcement authorities and “how technology, including online platforms, financing, and malign foreign influence operations and campaigns” might have contributed to the Capitol attack. The scope and range of the commission’s jurisdiction seems appropriate.
The structure of the commission is almost an exact replica of the 9/11 Commission. Both bodies consist of 10 members, five selected by Democrats and five by Republicans. Interestingly, the president appointed the 9/11 Commission’s chair. The speaker of the House and the Senate majority leader are to jointly pick the Jan. 6 Commission chair—but there’s no role for President Biden here.
The requirements for subpoenas track those of the 9/11 Commission, too. The new commission allows subpoenas to issue either on the agreement of the chair and vice chair, or on a majority vote of commissioners. As some commentators have pointed out, this could potentially give Republican members the ability to block any subpoena if they vote together—but it also means that only one Republican-appointed commissioner would be required to make a subpoena go through.
One commendable feature of the bill is that it does not compromise on the premise that Jan. 6 represented something ugly and dangerous that requires investigation. There is no false equivalence here with violence at other protests, for example. The bill, rather, includes a long section describing the “purpose” of the body, the first section of which does not mince words:
To investigate and report upon the facts and causes relating to the January 6, 2021, domestic terrorist attack upon the United States Capitol Complex (hereafter referred to as the ‘‘domestic terrorist attack on the Capitol’’) and relating to the interference with the peaceful transfer of power, including facts and causes relating to the preparedness and response of the United States Capitol Police and other Federal, State, and local law enforcement in the National Capitol Region and other instrumentality of government, as well as the influencing factors that fomented such attack on American representative democracy while engaged in a constitutional process.
The success of the 9/11 Commission—which both issued a compelling narrative history of the events leading up to Sept. 11 and issued a set of bold policy recommendations for Congress and the administration in response—shows that the structure the bipartisan bill embraces is at least consistent with effective investigative work product. If one imagines that the chairman and vice chairman of this commission lock arms the way the 9/11 Commission leadership did and operate in lockstep,if one imagines that the individual commissioners do the same and that leadership of both parties appoint commissioners likely to behave in this way and if one imagines that the commission hires the kind of first-rate staff that enabled the 9/11 Commission’s success, the legal structure provided by the agreement is one that would enable a credible investigation now, just as it did then.
The problem, however, is that there are reasons to doubt that these predicates for success will come to be. Congress is a great deal more polarized than it was in 2002. And the commission structure will support deadlock if the commissioners split, just as surely as it will support effectiveness if they stand together.
The problem isn’t just that Congress is polarized. It’s that the Republican Party has radicalized—half of self-identified Republicans believe the riot was covertly started by left-wing protestors and six in 10 Republicans believe that Trump rightfully won the 2020 election. It is hard to imagine that the 9/11 Commission would have performed as it did had it been staffed in part by people who found it politically advantageous to profess sympathies to al-Qaeda. The bipartisanship and credibility of a Jan. 6 commission will be a fragile thing and could be easily ruptured by mischievous appointments. Even if all the commission members behave themselves, there is the question of how effective a sober report on the Capitol riot can be in a political environment where such a significant portion of one party disputes fundamental truths about the election and the riot.
There are technical problems too. First, the legislation gives the commission a deadline of Dec. 31, 2021. Even if the Senate clears the measure in a timely manner—and that’s a big if—that leaves just seven months for congressional leaders to select commissioners, for those commissioners to hire staff, and for the members and staff together to complete the heavy investigative lift at hand. Add in the possibility that one or more witnesses could attempt to contest subpoenas from the commission and it’s easy to see how the Dec. 31 deadline limits the possibility of a robust investigation. Indeed, it’s almost impossible to see how it does not.
A second possible challenge relates to the commissioners’ areas of expertise. Under the legislation, the individuals selected for the commission “should be prominent United States citizens, with national recognition and significant depth of experience in at least two of the following areas: governmental service; law enforcement; civil rights, civil liberties, and privacy; the Armed Forces; intelligence; counterterrorism; cybersecurity; technology; [and] law.” Notably absent from that list is expertise in the operations of Congress itself. But understanding, for example, the particular structure of the Capitol Police Board as the entity that makes many of the day-to-day decisions about security operations at the Capitol is vital to getting a complete picture of what happened both operationally on Jan. 6 and in the months and years prior to create the conditions that could contribute to the security failures.
Some very early speculation on possible members of the commission includes several former members of Congress. On one hand, former legislators could have some of the necessary expertise in congressional operations. But they could also be reluctant to lay blame at the feet of their former colleagues or their successors for whatever missteps Congress itself made to contribute to the operational failures on Jan. 6. As a result, smart, careful staffing decisions are vital to ensure the commission has expertise in this area.
Given the challenges the House has faced in getting this far, sending the bill to the Senate will be a substantial accomplishment, and if it needs to move unamended in order to make that happen, so be it. That said, Congress should consider making at least one and maybe two key changes, and there’s one other thing it should keep in mind in order to improve the likelihood of a successful commission.
The first is to change the deadline—preferably to eliminate it altogether. If a deadline is necessary, giving the commission a full year or 18 months following the seating of all of the commissioners makes far more sense than a seven-month timeframe, which is inflexible even if the commissioners and staffers are not in place in a timely fashion. If members are worried about the possibility of the commission’s report coming in the midst of the 2022 midterm election season, a deadline that comes after the election is perfectly respectable. But the current deadline is a recipe for shallowness. It will discourage consensus building and give some commissioners an incentive to try to run out the clock.
Second, the Senate should give some thought to the problem of deadlock on the commission. One way to address this problem would be to add an independent commissioner for purposes of breaking ties if the commission splits along party lines. An independent member might be added, say, by requiring an 11th member appointed by mutual agreement of the four senior members of the House and Senate leadership. Or an independent could be recommended by someone outside the congressional apparatus altogether, like, say, the chief justice. Members may balk at this, as it involves something of a departure from the 9/11 Commission model, but the issue of how to prevent deadlock should be explored.
Particularly if Congress does not adjust the composition of the commission, the effectiveness of the body will depend pervasively on the specific individuals named as commissioners and as key staff. If the commissioners want to doggedly pursue the truth and tell the story of what happened on Jan. 6, they can do so under this proposed structure. They can hire a nonpartisan staff with critical and diverse expertise, and they can issue subpoenas if needed. But even if only five commissioners want to hit the breaks, they can do that too. And if a few want to use the commission as a forum for denying that the insurrection even happened, there is little to stop them. Indeed, under this legislation, the commission could act a whole lot like a congressional committee, with divided staff chosen more for political loyalty and ties than for expertise and investigative seriousness. Under this bipartisan compromise, the policy will really be only as good as the people.