Clear up facts
First, the committee has a number of loose factual points to clear up. We still don’t have answers for how or why the Secret Service, the Defense Department and the Department of Homeland Security erased messages, nor do we know whether any Secret Service officers misled or outright lied to the committee. We have not learned why cronies of Donald Trump such as Kash Patel were installed at the Pentagon and what, if anything, they did to enable a coup. And we still don’t have a definitive look at the money trail. Perhaps most important, the committee has not yet established firm ties among insurrectionists and the people at Trump’s Willard hotel coup “command center.” Former prosecutor Renato Mariotti says, “The piece of this puzzle that we know the least about are the links between the insurrectionists who stormed the Capitol and political leaders/activists.”
Additionally, the committee has not obtained testimony from certain key figures: Trump, former vice president Mike Pence, Virginia “Ginni” Thomas (although she has apparently agreed to an interview) or members of the House and Senate adjacent to the coup. Trump would take the Fifth, but there is no reason to let Pence evade his obligations, especially since he could have been in a position to hear any Trump statements that might have signaled criminal intent. If Pence refuses, the committee should make clear in its report why this kind of political calculation impairs the rule of law.
We are also getting to the point where the committee should publicly list the people who are not cooperating and recommend they be brought before a federal grand jury. It’s essential to the rule of law that no witness get away with stiffing Congress on a matter of such importance.
Definitive account and referral
Second, the committee should set out the definitive factual account and make its referral. If nothing else, the committee’s job was to explain to the American people who did what in the coup. It is essential that the committee do so with an easily accessible executive summary in its final report.
The committee should also make a criminal referral to the Justice Department. This was at one time a matter of controversy, but given the blockbuster hearings’ evidence and revealing public comments from committee members, there is clear grounds to refer. (Besides, the referral has no real legal significance, and the Justice Department is already plainly investigating the matter, anyway, along with the Mar-a-Lago documents case.) To not refer at this point would undermine the committee’s remarkable findings.
Moreover, since Congress makes so many referrals these days, former Justice Department lawyer Andrew Weissmann argues, it would be “odd to not do it here,” suggesting by implication that it is giving Trump some kind of clean bill of health. Constitutional scholar Laurence Tribe concurs, saying, “The very omission to make such a referral would be understood, rightly or wrongly, to mean that the committee was less than unanimous and enthusiastic in its conclusion that these crimes have been committed and that those who committed them need to be held accountable.”
And the committee might feel free to include the names of suspected co-conspirators (e.g., Trump lawyer John Eastman) who would share liability in conspiracy or aiding-and-abetting counts.
Underscore the danger
Third, the committee needs to underscore the danger to democracy that Trump and his cohort pose. Former federal judge J. Michael Luttig dubbed Trump and his enablers a “clear and present danger” to America. It behooves the committee to explain exactly what that means, why the “big lie” is a pernicious assault on democratic elections, why the president and his cronies must face the same legal consequence as any American, and why we cannot put in office people who deny the legitimacy of an election simply because they did not win. The committee should debunk the notion that fraud is common, widespread and easy. This was the cleanest and fairest election in history; allowing Republican legislators to lie about it in order to pass voter subversion and repression measures is unacceptable.
The committee has also promised recommendations to safeguard our democracy, which should go beyond “Don’t ever give the election deniers power.” These can include: Electoral Count Act reform; enhanced security for the Capitol; nonpartisan election administration; funding for updated voting machines and additional staffing; increased penalties for election fraud and endangering election officials; and requiring paper ballot backups.
The committee has not answered every question, but it revealed and explained far more than many expected. It now needs to end with an accessible, definitive report that ties up as many of these loose ends as possible.
The Jan. 6 insurrection
Congressional hearings: The House committee investigating the attack on the U.S. Capitol held a series of high-profile hearings to share its findings with the U.S. public. In what was likely its final hearing, the committee issued a surprise subpoena seeking testimony from former president Donald Trump. Here’s a guide to the biggest hearing moments so far.
Will there be charges? The committee could make criminal referrals of former president Donald Trump over his role in the attack, Rep. Liz Cheney (R-Wyo.) said in an interview.
The riot: On Jan. 6, 2021, a pro-Trump mob stormed the U.S. Capitol in an attempt to stop the certification of the 2020 election results. Five people died on that day or in the immediate aftermath, and 140 police officers were assaulted.
Inside the siege: During the rampage, rioters came perilously close to penetrating the inner sanctums of the building while lawmakers were still there, including former vice president Mike Pence. The Washington Post examined text messages, photos and videos to create a video timeline of what happened on Jan. 6.