Pluses and Minuses of Pelosi’s Draft Jan. 6 Commission Proposal

Speaker Nancy Pelosi released her draft proposal for a Commission to investigate the January 6th attack on the U.S. Capitol. On our review, which compares the proposal to past commissions and current political circumstances, it is a laudable effort that could help the country considerably. The draft text has some subtle virtues that are being missed by many commentators, and also some weaknesses. 

The Speaker reportedly circulated this draft to Republican colleagues to solicit their feedback. It should be recalled that 31 Republican members of the House have already gone on record to support a January 6 Commission with their own bill that resembles, in many respects, the 9/11 Commission.

Below we canvas some of the central features of the Speaker’s proposal, points of potential tension, and unanswered questions.

Selection and Composition

The Speaker’s proposal would create an eleven-person Commission, with three Commissioners, including the Chair, chosen by President Joe Biden. The other eight would be chosen evenly — two each — by the House and Senate Democratic and Republican leaders. As such, Democrats would appoint seven of the eleven Commissioners. The 9/11 Commission was evenly divided, with an informal agreement that Sen. John McCain, a leading proponent of the commission, could essentially veto one of Sen. Trent Lott’s choices. The commission that investigated the 2008 financial crisis had an appointments clause with more seats assigned by Democrats than Republicans.

President Biden would have a significant ability to shape the Commission’s orientation by naming the Chair and the largest share of appointments. But that sword is double-edged — the President’s influence in shaping the composition of the Commission will also lead to a political expectation that the President will facilitate the Commission’s work. That expectation will add to awkwardness for the White House should the Commission’s information and access requests encounter executive branch resistance.

Scope and Mandate

Under the Speaker’s proposal, the mandate of the Commission would focus not only on the security measures in place and the chronology of the attack, but also “the influencing factors that fomented such an attack on American representative democracy while engaged in a constitutional process.” That language invites the Commission to situate the attack in the broader political context, including the disinformation about election integrity, including then-President Donald Trump’s role, leading up to January 6. We will see if those members of the Republican Conference are inclined to support an investigation or will try to narrow the scope of that mandate or broaden it to include summer 2020 events including violence surrounding some of the George Floyd protests (see Karoun Demirjian’s reporting).

The Republican bill notably includes a fairly broad scope with respect to the causes of the Jan. 6 attack. It would give the commission the job of conducting “an investigation of the relevant facts and circumstances relating to the attacks on the United States Capitol of January 6, 2021” and “the causes of and the lessons learned from the attacks regarding the structure, coordination, management policies, and procedures of the Federal Government.” Notably, 15 of the 30 cosponsors of the Republican bill voted against certifying the presidential election results. The other 15 cosponsors include four Republicans who voted to impeach President Trump (Rep. Jaime Herrera Beutler (R-Wa); Rep. John Katko (R-Ny), Rep. Adam Kinzinger (R-Ill), Rep. Peter Meijer (R-Mi)).

The Commission’s mandate, as proposed by Speaker Pelosi, would also “examine and evaluate evidence developed by relevant Federal, State, and local government agencies.” It also commands the Commission to “build upon the investigations of other entities and avoid unnecessary duplication.” Like previous independent commission inquiries, requests to “examine and evaluate” law enforcement and intelligence files are a ripe area for institutional conflict, especially when there is an argument that the release of intelligence information could compromise sources and methods of intelligence collection or where there are open criminal files and investigations. This is an area of interbranch tension that the Biden administration will have to navigate should the Commission be established. How the different institutional stakeholders engage in this space will be affected, in part, by whether they can run out the clock.  

Deadline

It will be hard to square the Speaker’s proposed deadline — December 31, 2021 — with law enforcement investigations and prosecutions that will likely extend far beyond year’s end (see Marshall Cohen and Evan Perez’s reporting). When added together, the subject matter under investigation, the agencies and processes involved, and the deadline suggest that the Commission will likely want to review open and active law enforcement files. That confluence of factors suggests the Commission runs a high risk of resistance from DOJ and the FBI for many documents the Commission may deem to be essential to its inquiry. It may also take time for commission members to receive security clearances (as happened with the 9/11 Commission).

Of course, Congress could choose to extend the deadline as it did for the 9/11 Commission. But the leadership of the 9/11 Commissioners — Chair Keating and Vice Chair Lee Hamilton — recently stressed the need for enough time for the investigation to meet its mandate without being jammed by an artificial deadline.

Powers

Of particular significance, the Speaker’s draft includes subpoena power. Subpoenas may be issued by the Chair or by a majority vote of the Commission. It also provides for judicial enforcement backed by civil contempt: 

(B) FAILURE TO OBEY A SUBPOENA.—If a person does not obey a subpoena issued under subparagraph (A), the Commission may apply to a United States district court for an order requiring that person to appear before the Commission to give testimony, produce evidence, or both, relating to the matter under investigation. The application may be made within the judicial district where the hearing is conducted or where that person is found, resides, or transacts business. Any failure to obey the order of the court may be punished by the court as civil contempt.

As noted in the Chart composed by Margaret Shields and Heather Szilagyi, the Speaker’s proposal lacks a federal prosecution enforcement provision for criminal contempt. That weakness in the subpoena power contrasts with the enforcement provisions of the 9/11 Commission and both Republican and Democratic bills for a Jan. 6 Commission. Also, as readers may recall, express statutory authorization for the House to seek federal judicial enforcement of subpoenas is at issue in the litigation, House Judiciary Committee v. McGahn, that is pending for oral argument in April before the en banc panel of the D.C. Circuit.

With the power of the Chair to issue subpoenas, the commission could create significant public benefits compared to congressional investigations. Indeed, we believe this is one of the underappreciated virtues of a commission, regardless of whether it produces a unified report at the end of the day. 

In addition to formal enforcement mechanisms, some informal dynamics could help shake loose documents and testimony from any recalcitrant executive branch agencies. President Biden would also likely face pressure not to stonewall a Chair who he appointed or a commission he signed into law. And unlike the 9/11 Commission, the Jan. 6 Commission will have the benefit of not investigating the current occupants of the White House.

In terms of informal powers, the track record of the 9/11 Commission is instructive. A joint inquiry by the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence was unable to secure either the testimony of then-National Security Advisor Condoleezza Rice or the Presidential Daily Briefs. Republican and Democratic members of the 9/11 Commission were confident, however, that as an independent commission they would succeed in obtaining such information, and they were proven right (Philip Shenon’s The Commission: The Uncensored History of the 9/11 Investigation). The information created a major breakthrough that has ever since defined how Americans understand the White House’s acts and omissions prior to that terrorist attack.

The commission could create significant public benefits compared to congressional investigations. Indeed, we believe this is one of the underappreciated virtues of a commission, regardless of whether it produces a unified report at the end of the day. 

It requires little imagination to see how significant it could be to obtain documentary and testimonial information about President Trump’s actions and inactions in the White House on January 6. In the case of the Capitol attack, witnesses would have to testify under threat of perjury and a Justice Department more willing to enforce that law in this context. One could imagine resistance from Trump-era officials, starting with the former President. But while the former President is entitled to consultation about National Archives releases of his records, it is the Biden administration that will have the final call — but also may have some institutional interests in asserting some executive branch confidentiality interests in the face of the Commission inquiries.

All that said, the “who” question is central. The character and stature of the person who serves as Chair of the commission — plus the early conduct of the commission aimed at establishing credibility — will determine, in large part, how much force flows from informal political hydraulics.

Conclusion

Over the coming days and weeks, we will find out whether the Speaker obtains buy-in from elements of the House GOP, Senate, and Biden administration. There are potentially multiple paths to success with Republicans already having offered a strong bill back in January. The most important feature of the Commission may be its special abilities to provide the public with documents and testimony that defines our understanding of the events leading up to and on January 6, regardless of whether any final report splits more along party lines.   

 

Image: Chip Somodevilla/Getty

 

About the Author(s)

Andy Wright

Andy Wrights ( (@AndyMcCanse) is Senior Fellow and Founding Editor of Just Security. He previously served as Associate Counsel to the President in the White House Counsel’s Office; and Staff Director and Counsel to the national security subcommittee of the U.S. House Committee on Oversight and Government Reform. Wright is a Partner in the Washington office of K&L Gates.

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).