What Should Happen With the January 6th Investigation Now? Experts Weigh In.

Although House Speaker Nancy Pelosi remains committed to pursuing an independent commission to investigate the January 6th attack on the Capitol, opponents in the Senate continue to block such an option. If the situation remains intractable, Pelosi is reportedly considering three remaining avenues: appointing a select committee; allowing multiple standing committees to continue with their own examinations; or choosing a committee, such as the House Committee on Homeland Security, to investigate. Determining which option works best requires careful consideration of the goals of such an investigation and the advantages and limitations of each of the three vehicles. 

One widely discussed option, a select committee, is a specially created panel of members of Congress aimed at addressing particular measures or issues – fit for the purpose of investigating an attack on the heart of the federal government in Washington, D.C. Such committees are characterized by their relative brevity; once the issue at hand has been dealt with, the committee is no longer renewed. It is easy to see why this type of approach would appeal to supporters of an investigation. A select committee could be created by a simple majority vote, and the singular function of the committee lends it a focus and gravitas, as opposed to attaching the investigation as an ancillary onto existing standing committees that are already overburdened with other tasks. Jim Townsend, director of the Levin Center at Wayne Law School, notes that while a select committee or standing committee would have the same authority to subpoena witnesses, take depositions, and hold hearings, a select committee would “eleva[te] the importance of the January 6th insurrection and concentrat[e] resources to its investigation.” By providing members with a “singular mission which prioritizes fulfilling that mission over other competing committee interests,” a select committee can avoid the distractions a busy standing committee might have and underscore the seriousness of a congressional response to the Jan. 6 attack.   

Austin Evers, executive director of American Oversight,  highlighted several virtues of a select committee, including its ability to avoid the distractions of other bodies and the opportunity to “streamline traditional obstacles to congressional oversight.” Because a select committee would be founded with the express intent to investigate, Evers notes that it could be empowered from the start with the resources and abilities necessary for proper scrutiny, such as being able to hire outside counsel and staff or litigate subpoenas. He also points to the ability of Speaker Pelosi to appoint members to the committee as a way to preserve the integrity of the investigation: “The January 6 investigation will face bad faith attacks regardless of the form it takes. The best thing the Speaker can do is to stock a select committee with members of both parties who will rise above the fray even as they pursue the truth aggressively.”  Donald Wolfensberger, Congressional Scholar at the Wilson Center, adds that it takes “time to authorize, appoint and organize any such new entity.” Townsend, however, sees this as a potential benefit, as staffing a new committee would provide an “opportunity to have a unified staff that serves all members regardless of party” and allow the committee to recruit “legal and investigative talent that may be available for only a limited amount of time.” 

Wolfensberger, however, is skeptical that Democrats will get what they want from a select committee, even as he agrees that one drawing on members from multiple committees of jurisdiction is the obvious next step in pursuing an investigation. He sees Republican recalcitrance as something that will force Democrats into pursuing what will be viewed as a “much more partisan undertaking.” Given the public’s weariness with partisan squabbling, this may provide those in the GOP with significant fodder to argue that Democrats intended to politicize the investigation for the 2022 elections. 

Select committees also have a potentially fatal flaw – participating members of Congress must be newly selected. Townsend sees this as a critical issue for the panel — a select committee would be a preferable alternative to the current status-quo approach only if its co-chairs are “members of strong character, resilien[t] to political posturing, and have a commitment to the facts and bipartisanship.” But Minority Leader Kevin McCarthy, who strongly opposed investigating the attack through an independent commission, would be able to appoint members to a select committee, and Wolfensberger expects McCarthy to stack the deck “with the most fiercely partisan, hand-to-hand combatants.” Evers believes that this problem could be mitigated by the committee chair’s subpoena power and the careful appointment of members by Speaker Pelosi. 

Because it appears likely that a select committee cannot avoid the partisan bickering engulfing Washington, some see little value in expending the time, resources, and political capital necessary to form one. Several standing committees –  permanent committees established by the House – are already engaged in their own fact-finding, soliciting information from intelligence agencies and conducting hearings on the attack. While he recognizes the logistical appeal of centralizing the inquiry into one body, Michael Stern, former Senior Counsel to the House of Representatives, believes that absent “a group of Republicans who are prepared to participate on the committee and share a more or less common objective with the chair/majority,” a select committee makes little sense when multiple standing committees are already investigating the attack. What’s more, standing committees already have the infrastructure and relationships in place to negotiate the particularities that arise in an investigation. 

Stern leans toward a “multi-committee option with some sort of coordinating mechanism to provide guidance and assistance to the different investigating staffs,” such as the Government Accountability Office. He referred to the use of multiple committees in the Ukraine investigation as an effort that “worked tolerably well.” Andy Wright, a founding editor of Just Security, also distinguishes an “every committee for itself” approach from one more coordinated: “There is value in coordination and a unified voice, or failing that, consolidated voices.” An investigation that relied on a number of cooperating standing committees, as well as a select committee, would “have a broader mandate than a single committee or a bunch of committees acting independently.” 

Supporters of robust investigation have another alternative available that can potentially reduce the investment costs of a select committee, provide a centralized place for coordinating the investigation, bypass or minimize the risks of Minority Leader McCarthy packing the investigating body with disingenuine actors, and somewhat shield lawmakers from partisan extremes: the Homeland Security Committee. Choosing any standing committee carries several advantages: an existing, known membership; established practices and procedures; a likely already initiated inquiry into the attack; and access to the same subpoena powers as other panels. What is unique about the House Committee on Homeland Security is that the composition of the Committee’s membership provides Congress with members of both parties apparently  sympathetic to the cause of an investigation. Six of the sixteen Republican members of the Committee voted in favor of establishing an independent commission to investigate the January 6 attack thanks to legislation negotiated by Reps. Bennie Thompson and John Katko, the Homeland Security Committee chair and ranking Republican. Thirteen out of the sixteen Republican members of the Committee co-sponsored H.R. 275, a Republican bill aimed at establishing an independent January 6 commission similar in form to the 9/11 commission and also similar to the legislation that passed the House. By pivoting to the Homeland Security Committee, Democrats can bypass the expectation from some members of the GOP that they will choose to pursue a “hyper-partisan” select committee and also include Republican members without the whole effort descending into a “partisan circus.”

Wright, however, cautions that while the prospective “bipartisan buy-in” from choosing the Homeland Security Committee could be politically valuable, “it will come at the cost to Democrats of the broader jurisdictional mandate and, perhaps, the willingness to deploy subpoenas aggressively in order to keep the spirit of bipartisanship.” Evers also highlights the ways in which the “broad responsibilities” of a standing committee like the Homeland Security Committee may make the option less appealing than a select committee. While “the Homeland Security Committee currently must respond to mounting cyber-attacks, as well as the looming hurricane and fire seasons,” a select committee’s only mandate is to focus on the task at hand. Stern is also uncertain that the committee has the necessary resources or experience to conduct an investigation on its own.

If the goal of establishing an investigating body is simply to discover the truth and establish a record of the events, the law enforcement community and several committees are already on the case. If it is a question of garnering attention from the public and the media, then Donald Wolfensberger warns us how that can turn into fierce partisan fighting. A select committee may provide a vehicle for treating the inquiry with the gravity, focus, and special staffing that it deserves. But without careful cultivation of its membership, it risks not only falling into the same partisan infighting that has beleaguered Congress but also becoming a platform for spreading more disinformation by some Republican members. Staying the current course of allowing multiple standing committees to engage in their own information gathering is an easy option, but it does not seem to adequately signal the gravity of what happened on January 6 or obtain the other virtues of a select committee. The Homeland Security Committee offers supporters perhaps the easiest access to cooperation across party lines, but its competing missions may distract the panel from its task. Ultimately, the choice comes down to, as Michael Stern puts it, what supporters of an investigation hope to accomplish and what costs they are willing to bear.

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