Published by The Lawfare Institute
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The House committee investigating Jan. 6 has so far convened only one open hearing about the Capitol insurrection—when it gathered in July 2021 to hear testimony from Capitol Police and D.C. Metropolitan Police Department officers who were harmed while defending Congress from rioters. Since December 2021, though, committee members and staffers have hinted that more hearings are in the works. The Washington Post reported late last year that the committee was planning “public hearings starting this winter and stretching into spring, followed by an interim report in the summer and a final report ahead of November’s elections.” Yet by January 2022, Committee Chairman Rep. Bennie Thompson told the Hill that hearings were likely to begin in late March or early April. When early March arrived, no hearings were on the books—and the Guardian wrote that investigators aimed to begin the public phases of its work in April. And now that April is here, NBC reports that the committee “hopes to begin public hearings in May.”
This perpetual delay is all the more striking because, as committee member Rep. Jamie Raskin acknowledged to NBC, the committee is “playing ‘beat the clock.’” The 2022 midterm elections are fast approaching, and history suggests that Republicans—as the opposition party to the first-term president—are the favorite to take control of the House of Representatives. According to Politico, House Republicans, anticipating control of the chamber, are currently debating whether to simply let the select committee die—specifically, by refusing to reauthorize it at the beginning of the next Congress—or repurpose the committee in order to somehow turn the investigation on Democrats. Either way, the current committee likely has to assume that its work will end along with the 117th Congress. This makes for an extremely hard deadline, and one that is fast approaching. So if the Jan. 6 committee wants to convene “multiple weeks” of public hearings, as Committee Vice Chair Rep. Liz Cheney said in December 2021, it would seem like it needs to get moving—and quickly. There’s not much time left for any further delays.
Recently, there have been some signs that the committee is starting to feel the pressure. Politico reported on April 11 that “[i]t’s decision time for the Jan. 6 select committee” as “the panel has entered the final phase of its eight-month investigation and is preparing to reveal a swath of evidence to the public.” A headline in New York Magazine from the same day reads, “The January 6 Committee Prepares to Go Public.” Given the months of delays that have already ticked past, though, it’s reasonable to wonder whether the wait might continue. And understanding the reasons for the holdup can help clarify some of the strategic choices the committee has made and the questions that remain about where the investigation might go.
So why is it that months after the hearings were first promised, they have yet to begin? We’re far from the only people interested in this question. Bloomberg’s Jonathan Bernstein has been on the case since at least December 2021. From what we can tell, two key decisions on the committee’s part seem to have played in this delay. First, the committee made an early decision to finish its investigative work before starting hearings. And second, investigators have chosen to scope their work widely, following a number of different leads in their effort to understand what happened on the day of the insurrection and the months before. The result is an investigation that the committee may struggle to wrap up and present to the public in the time that remains before January 2023. If the goal is still for the committee to establish publicly “for the American people in vivid color exactly what happened on Jan. 6”—to quote Cheney—investigators may have some tough choices ahead.
There’s no requirement that the Jan. 6 committee hold hearings. The House resolution authorizing the committee calls only for investigators to “issue a final report to the House containing such findings, conclusions, and recommendations … as it may deem necessary”—and while the resolution states that the committee “may” issue interim reports along the way, that’s left to the panel’s discretion. Nevertheless, investigators have made clear that they understand a public presentation of the evidence “in living color,” as Cheney said, to be a core part of their work. The committee’s initial July 2021 hearing, which received widespread attention for its visceral presentation of the violence of the insurrection, arguably did a great deal to further this goal. It’s not surprising that the committee might attempt to repeat that prime-time feat.
In December 2021, committee member Rep. Adam Schiff commented that the goal is to use the hearings to “tell the whole story … so the public knows exactly what’s going on.” The committee seems to view its work, at least in part, as a mission of shaping Americans’ understanding of the Capitol riot—and hearings are central to that mission. “We want the public to understand just how close we came to a very different result and that democracy was in danger,” Rep. Pete Aguilar, Cheney and Schiff’s colleague on the committee, told Politico in January.
When members of the committee first began discussing plans for public hearings in December 2021, they made clear that such proceedings would take place after the committee had finished its investigative work. “We will tell this story to the American people,” said Thompson at the time, during a committee meeting on the adoption of a report finding former White House Chief of Staff Mark Meadows in contempt of Congress. “But we won’t do it piecemeal. We’ll do it when we can tell the story all at once, from start to finish, not leave anyone guessing and not allowing it to fade into the memories of last week’s news.” Likewise, a March 2022 report by ABC indicated that the committee had a similar order of operations in mind: “Given the committee’s hearing schedule and self-imposed deadline to issue a final report in the fall, it’s becoming increasingly unlikely that discussions with Vice President Pence and Trump attorney Rudy Giuliani will result in interviews with congressional investigators,” the outlet wrote. The implication is that the committee aims to complete interviews with witnesses before beginning hearings.
Why might the committee have decided on such an approach? Considered in isolation from other factors, there are certainly reasons to wait. Given the enormous complexity of the story the committee is ultimately trying to tell the public, having all the information in hand and then being able to take time to lay out a narrative carefully is certainly attractive. And depending on which witnesses the committee plans to include in its hearings, there is also an argument for a neatly scripted approach, lest the panel get publicly blindsided by new facts emerging in hearings that its members have not previously heard.
It’s also worth noting that there are several important features of the committee and its work that have given it the luxury of waiting to start hearings. As Kyle Cheney noted for Politico in December 2021, the committee is operating on a largely unanimous basis, without a group of Republican members who are trying to use the information the panel has collected to try and undermine it from within. When it does hold hearings, meanwhile, it is unlikely to find itself bogged down in the kind of procedural infighting that afflicted, for example, the first Trump impeachment hearings in 2019—where Republicans and Democrats often seemed to be conducting completely different proceedings, with Democrats inquiring after evidence of Trump’s misdeeds and Republicans alternatively defending the president and chasing down conspiracy theories.
Indeed, it appears possible that the committee is attempting to follow, at least in basic terms, the playbook used by the House during those 2019 proceedings. There, three House committees (Intelligence, Oversight and Foreign Affairs) conducted a number of depositions and then called a subset of the individuals deposed to testify in a series of hearings with the goal of laying out a coherent narrative for the public. The facts of the impeachment inquiry were not uncomplicated, but when compared to the details at hand in the Jan. 6 investigation, they seem downright easy to follow.
Jan. 6 was an event of massive scale and complexity, pulling together many different threads of American political life and generating an enormous amount of documentation. The Justice Department now estimates that as many as 2,500 people entered the Capitol, and law enforcement officials involved in the criminal prosecutions of rioters have already reviewed 20,000 hours of video footage. With that in mind, it’s understandable—even to be expected—that the congressional investigation would need to run down a wide range of leads.
According to reporting by the New York Times and the Washington Post, the committee seems to have divided its work among five different “teams” of investigators each probing a different facet of the Capitol riot and the events leading up to it. The first team, the Post writes, is focusing on “understanding the preparation and response to the event by federal and local law enforcement.” Another, which the Times terms the “green team,” is studying the fundraising efforts related to lies about election fraud. Yet another is, according to the Post, “investigating online misinformation and extremist activity”—the Times refers to this as the “purple team” and describes it only as focusing on “domestic violent extremist groups.” A fourth, the “gold team” in the Times’s description, is studying efforts to pressure lawmakers in Washington, D.C., and around the country to overturn the election. And fifth, the “red team” is examining the organizers of the several planned rallies on the National Mall the day of Jan. 6.
This is, to say the least, quite a broad mandate—one that would be ambitious even if the committee didn’t have a looming deadline to meet. But just as reporters keep pulling on new threads to unravel the story of Jan. 6, the committee keeps coming across new leads, too. These leads have begun to touch on substantive issues that may spark disagreement within a committee that has, until now, been largely unanimous. And those disagreements, too, could generate further delay.
Most recently, Jan. 6 congressional investigators have reportedly been debating how to handle explosive text messages between Meadows and Virginia Thomas, the conservative activist and wife of Supreme Court Justice Clarence Thomas. In one sense, the text messages—which show Thomas pushing Meadows and the White House to overturn the 2020 election on the basis of debunked conspiracy theories—are an obvious fit for the committee’s investigation. In another, though, digging into Thomas’s involvement could make things very awkward. As the New York Times writes, “In the Thomases, the committee is up against a couple that has deep networks of support across the conservative movement and Washington, including inside the committee.” Cheney, the paper notes, “has wanted to avoid any aggressive effort that, in her view, could unfairly target Justice Thomas”—though she agreed to support a request to Thomas for a voluntary interview, if not a subpoena. (As of March 28, Thompson told reporters that the committee had not reached a decision regarding whether to subpoena Virginia Thomas.)
The committee has so far been remarkably successful in conducting a unified investigation into the inevitably controversial topic of Jan. 6. According to U.S. News & World Report, committee member Rep. Zoe Lofgren said in January 2022 that “[t]here is ‘no division, no hostility, no partisan bickering—it’s like, let’s just get this job done.’” But it was likely inevitable that the members would end up disagreeing at some point, especially as the investigation has continued to expand and has touched individuals, like Justice Thomas, with connections to figures within what’s considered the more traditional Republican establishment. The two Republican members of the committee, Cheney and Rep. Adam Kinzinger, have been united with committee Democrats in opposing Trump’s abuses, but they are still Republicans, and it makes sense that they might be more cautious in expanding the probe to investigate aspects of the party less closely tied to Trump himself.
For this reason, continuing to investigate—even if it is necessary to get to the bottom of what happened on Jan. 6—runs the risk of uncovering more sources of disagreement. And the more disagreement there is about where the investigation should end, the harder it might be for the committee to wrap up its work and begin hearings.
More generally, attempting to do justice to a set of facts this broad and deep means the committee runs the risk of letting the investigation expand to whatever time the panel gives it—and never actually presenting its findings to the public in the way it originally planned. But the committee is going to have to make a decision sooner or later. Ultimately, it will need to change its approach one way or another—either by beginning to tell the public the story before all the facts are neatly in place, or by deciding that it has reached the limit of the facts it’s able to gather on a consensus basis with the time it has.
Navigating this trade-off has been, it appears, challenging for the committee—perhaps, in part, because it has a remit larger than any other entity examining what happened on Jan. 6. Other congressional investigations into the Capitol riot have been more limited in scope. The ongoing criminal prosecutions have revealed vital details but are constrained by the specific facts at hand in each individual case.
Recent reporting, however, suggests that the Department of Justice is pursuing a more expansive investigation of Jan. 6 than was previously known: According to the Washington Post, for example, “the criminal investigation into the Jan. 6 attack on the Capitol has expanded to examine the preparations for the rally that preceded the riot.” Perhaps the existence of a second, large-scale investigation may help take some pressure off the Jan. 6 committee to dot every “i” and cross every “t.” Then again, if the committee’s goal is to unveil the details of the Capitol riot to the public, a law enforcement probe—even a wide-ranging one—may not accomplish the same purpose. The Justice Department is necessarily far more constrained than a congressional committee in what it can share with the public, and there is no guarantee that prosecutors will be able to accumulate evidence to bring a case against the wider circle of people that the department is reportedly investigating.
A congressional investigation isn’t a second-best version of a law enforcement probe, but something different, with its own advantages and drawbacks. There are some things that the select committee can’t achieve on its own—most obviously, accountability in criminal court for legal wrongdoing. And congressional probes face problems that a Justice Department investigation doesn’t, like the difficulties of enforcing subpoenas and the different incentives facing elected members of Congress. All the same, the select committee is uniquely positioned to speak to the public in a way that law enforcement isn’t. If congressional investigators hope to tell Americans the full story of Jan. 6, that’s work that only they can do—and for that reason, they will need to start making some hard choices about their strategy very soon.