Republicans are likely to kill the Jan. 6 commission. But we have other options.

Republicans are likely to kill the Jan. 6 commission. But we have other options.

Washington Post

Opinion by 

Greg Sargent

Columnist

May 20, 2021 at 5:56 a.m. GMT+9

Trump supporters try to break through a police barrier at the Capitol on Jan. 6. (Julio Cortez/AP)

Image without a caption

Now that Senate Minority Leader Mitch McConnell (R-Ky.) has come out against the commission to examine the Jan. 6 insurrection, it’s looking increasingly like Republicans will kill it. This is especially likely given that Donald Trump has commanded them to end this entire discussion “immediately.”

House Speaker Nancy Pelosi (D-Calif.) is set to hold a vote Wednesday on the bipartisan deal reached in the lower chamber to create a commission. That compromise was very fair and made concessions to both Republicans and Democrats.

But with House Minority Leader Kevin McCarthy (R-Calif.) opposed as well, it’s unlikely to get the stampede of support from House Republicans that might forestall a GOP filibuster in the Senate.

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Now what?

Congressional scholar Norman Ornstein is well positioned to explain this moment and where we go from here. That’s because he was an early and very prescient observer of the GOP’s radicalization against democracy who also happens to be an expert on congressional procedure.

I spoke to Ornstein about what happens now. An edited and condensed version of our conversation follows.

Greg Sargent: What are the chances that 10 Republican senators vote for this commission?

Norman Ornstein: Once McConnell flatly opposed any commission, it created an uphill battle for getting 10 Republicans. If you got 50 Republicans in the House, then maybe it could happen. But it’s not likely.

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Sargent: Let’s walk through the alternatives. One would be that Nancy Pelosi could set up a select committee tomorrow if she wanted to, right?

Ornstein: Pelosi could craft a plan for a special committee. We’ve had them many times in the House. You’d undoubtedly have the votes to do it.

Sargent: What would a select committee look like and what might be the problems with it?

Ornstein: Most select committees have an even number of members from both parties, because the whole idea is to take them away from being partisan. But there’s nothing that mandates that a select committee have equal Democrats and Republicans.

You could set it up with a slender majority of Democrats or with a larger majority. But the big challenge is the political one. You’d have to let the Speaker and the Minority Leader, or their representatives, choose the members.

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Kevin McCarthy is going to do whatever he can, first, to block a committee, and second, to stack it with members designed to turn it into a farce.

Sargent: How can we have a bipartisan select committee investigate an attack that Trump incited against democracy, when one party was heavily complicit in inspiring that attack, doesn’t want to admit its own culpability for that, and is in the process of abandoning democracy?

Ornstein: It’s why I do not believe a select committee can possibly work. Republicans don’t want information to emerge about what happened on Jan. 6. They don’t want to focus on the role of the president — or their own party members.

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Sargent: Could you theoretically construct a select committee to give the chair unilateral control over subpoenas?

Ornstein: Yes, you could give the chair unilateral subpoena power. But remember, congressional subpoena power is theoretically extraordinarily powerful. Practically it can be subverted fairly easily. We’ve seen instance after instance of people defying subpoenas, taking it to court, and stretching it out for years.

Sargent: A select committee would have to consist of current members, correct?

Ornstein: Yes.

Sargent: So what is our alternative?

Ornstein: There are two. One I would not like is to have the president create a group by executive order, a commission.

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Sargent: You’re talking about something like the Kerner Commission created by LBJ to investigate the causes of urban rioting?

Ornstein: Yes. You could do a Kerner-type commission. And the president could pick some remarkably distinguished Republicans and Democrats to do that kind of inquiry.

For things like the Warren Commission, which investigated the assassination of President Kennedy, there was national consensus that this was a hugely significant thing that we need to get to the bottom of.

We don’t have a party on the Republican side willing to create that national consensus. [So] it’s better if the president is not directly linked to any of this.

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The whole assault was based on the “big lie” that Joe Biden didn’t win the election. If Joe Biden creates the group looking into this, it’s going to provide fodder for Trump and his acolytes to turn it against him.

Sargent: There isn’t going to be a serious inquiry into what happened that’s bipartisan.

Ornstein: The only way to make this work otherwise is if we can find a way to have the attorney general pick a group that uses the power of the Justice Department — not like a special prosecutor that can itself bring actions against people, but that could make recommendations where action by prosecutors was warranted or not. Justice Department subpoena power is a completely different matter.

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Sargent: What would be the legal authority or mechanism for creating something like this?

Ornstein: The Justice Department has the responsibility to look at potential criminal violations, especially those that involve sedition. So doing it in an innovative fashion makes sense.

Whether the attorney general can do this on his own, I’m not entirely sure. If you had to have some kind of executive order, I’d rather have it done in a fashion that empowers the attorney general to do this [with] a commitment from the attorney general that he’d be hands off once this group were created.

But it seems to me you could be innovative here. The attorney general under the regulations of the Justice Department has some ability to create groups like this.

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Sargent: In essence, it would be an investigation to determine whether there was criminality, and then it would produce a report on what happened, no matter what it recommended in terms of criminal charges?

Ornstein: That’s the idea. You could have a public report.

Sargent: There isn’t going to be a bipartisan effort at accountability as long as one party is committed to covering up what happened.

Ornstein: That’s the tragic and infuriating bottom line here. It’s hard to imagine something like this that doesn’t have full buy in from everybody who has a drop of patriotic blood running through his or her veins.

That you have one party which has as a singular goal evading responsibility and covering up what happened is almost beyond description.

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