Jan. 6: Congress
The Lessons—and Limits—of the Jan. 6 Committee
Going into the House select committee’s hearings to investigate the Jan. 6 attack on the Capitol, press coverage was cautious—even dour—about what the effort would be able to accomplish. As ProPublica editor-in-chief Stephene Engelberg wrote at the time, the “prevailing wisdom” was that even the most damning evidence unveiled by the committee would fail to “move either the Republican base or its leaders in Congress” on the question of Donald Trump’s culpability for what unfolded on Jan. 6. Politico described “an air of fatalism to Democrats’ approach to the hearings,” writing that the committee might struggle to “pierce many voters’ malaise” on the subject of the insurrection. The title of a column by New York Times opinion writer David Brooks, published the day before the hearings began, dismissed the committee’s vision offhandedly: “The Jan. 6 Committee Has Already Blown It.”
But almost two months and eight hearings later, the picture looks very different. The hearings “have been riveting to watch—and even more remarkably, they have captured the daily news cycle again and again,” wrote Washington Post media columnist Margaret Sullivan after the committee wrapped up its public work for the summer. The panel uncovered a surprising amount of new information about Jan. 6 and the months leading up to it—including material that went a significant way toward establishing Trump’s potential criminal culpability for the insurrection. While the relationship between the committee’s work and the ongoing Justice Department investigation into Jan. 6 isn’t quite clear, reporting suggests that the hearings may have prodded the department to investigate Trump’s role more aggressively. And there is some indication that the hearings have shifted public opinion, with more Republicans now saying that Trump lied about the election results and more independents deeming Jan. 6 “an insurrection and a threat to democracy” in polls conducted, respectively, by Politico/Morning Consult and Gallup.
The committee’s work isn’t over. The panel expects to hold additional hearings in September and plans to release a written report documenting its findings. But the committee’s work up to now has been remarkably effective—especially grading on the curve that regular Congress watchers have adopted over the years.
The hearings are a real demonstration of what the first branch of government is capable of when it puts its mind to it. So what factors helped get the Jan. 6 committee’s work off the ground, and to what extent might they be replicable in future investigations?
So far, the Jan. 6 hearings have been unlike almost all other public convenings by Congress. In some areas, this meant leaning in to techniques used in other recent high-profile proceedings, including those related to Trump’s two impeachments. The witnesses, for example, were sources friendly to the committee, whose testimony had been taken beforehand in deposition or interview form to minimize the odds of surprises—a tactic also used by the three House committees that convened the hearings featuring witness testimony during the first Trump impeachment.
Likewise, the Jan. 6 committee’s extensive use of visual aids and video clips of witness testimony—which New York Times television critic James Poniewozik described as “more the stuff of a high-gloss streaming documentary than anything we’re used to seeing from the U.S. Congress”—should also have felt familiar to watchers of the Trump impeachment proceedings. During the first impeachment inquiry, the House Committee on the Judiciary integrated video footage from the investigative hearings held earlier in the process. During the second impeachment, House managers relied heavily on video documentation of Jan. 6, unveiling footage previously unseen by the public that showed senators running through the halls of Congress to escape from rioters.
Rather than sticking to the typical congressional format of five-minute opening statements followed by questioning (alternating by party and strictly enforced), the Jan. 6 panel also opted for an approach that allowed the committee to construct a gripping, easy-to-follow narrative for the audience. The extended speeches from members, combined with less structured questioning of witnesses, represented a new iteration of the expanded period for questioning by the chair and ranking member of the House Intelligence Committee during the first impeachment inquiry.
In other ways, however, the committee broke clearly from usual congressional form. Often, simply by virtue of being elected officials, members of Congress seek the limelight. But in a somewhat remarkable show of restraint, only a handful of members of the Jan. 6 committee spoke at each hearing. During several of the hearings, the Democratic majority provided space for the two Republicans on the panel, Vice Chair Rep. Liz Cheney (R-Wyo.) and Rep. Adam Kinzinger (R-Ill.), to lead the session. Most notably, Cheney actually chaired the final, prime-time session of the summer’s stretch of hearings. This was in part because Rep. Bennie Thompson (D-Miss.) was isolating with COVID-19—but Thompson’s decision to have a member of the other party assume responsibility for such a prominent task was still an extraordinary one in a chamber otherwise run strictly on party lines.
Each hearing was also relatively short compared to other recent high-profile hearings, usually between 90 minutes and two and a half hours—a reasonable length of time to ask viewers to tune in. In contrast, in 2018, Special Counsel Robert Mueller’s consecutive testimony before the House Judiciary Committee and House Intelligence Committee took a combined six hours. Later that year, the hearings featuring witness testimony during the first Trump impeachment averaged a little over four and a half hours each. And unlike the shaggier impeachment hearings, which featured plenty of detours, the Jan. 6 hearings each focused on exploring a specific aspect of the insurrection. Because the hearings were designed—with some midstream revisions—to exist as a series, they often built to a scripted “cliffhanger” from Cheney in her closing remarks, such as when she warned about potential witness tampering by Trump and those around him. The committee also spaced its hearings out, usually sticking to just two a week, which gave the news cycle time to chew over the contents of each day’s events before the committee convened again.
So does this mean that the Jan. 6 hearings will set the tenor for future congressional investigations? Should onlookers expect that hearings from, say, the House Oversight Committee will feature the same dazzling presentation? In at least one recent instance, a committee has adopted the use of multimedia evidence: The Senate Judiciary Committee opened an Aug. 3 hearing on threats against election workers with a video montage of news reports and testimony by election officials, including video taken from the Jan. 6 hearings earlier this summer.
But don’t hold your breath for other aspects of the Jan. 6 committee’s strategy to be adopted elsewhere in Congress. The committee’s creativity would not have been possible without several key structural dynamics—dynamics that aren’t necessarily present in most other congressional investigations or in the broader work of the institution.
First and foremost, the committee’s members share a common goal: uncovering and revealing as much information as possible about the Jan. 6 insurrection. Public differences of opinion around how to pursue this aim have been limited, and this shared sense of purpose sits at the foundation of procedural choices, like deferring to only one or two members to speak during each hearing. Ironically, this accord was made possible, at least in part, by none other than Senate Minority Leader Kevin McCarthy (R-Calif.), who chose to withdraw his entire selection of pro-Trump Republicans for the panel after House Speaker Nancy Pelosi (D-Calif.) rejected two particularly extreme picks. The result of McCarthy’s strategic blunder is a committee whose Democratic and Republican members alike are in deep, fundamental agreement over the panel’s goals.
Without this accord, members would have likely reverted to the House’s familiar organizational forms, competing with one another for the cameras’ attention and pulling the panel’s public work in different directions. During the House Intelligence Committee’s initial investigation into the Ukraine scandal that led to Trump’s first impeachment, for example, the committee’s majority and minority released dueling reports, and the impeachment hearings in the House featured a confusing whiplash of Democrats and Republicans using their five minutes of questioning to build alternate and conflicting narratives that made the hearings difficult to follow.
Equally important as this intracommittee agreement is the lack of intercommittee conflict. At this point, the Jan. 6 committee is by far the focal point of Congress’s investigative work in response to the insurrection. To be clear, serious work was done by several House panels in the months between the attack on the Capitol and the establishment of the Jan. 6 committee in July 2021. Two Senate committees also released a report that identified a number of failures in the weeks before and during the riot, and legislation passed in 2021 addressed some of the issues raised in these investigations. Other ongoing work, most notably efforts to reform the Electoral Count Act in the Senate, also bears on the committee’s mission. But the Jan. 6 committee has not faced any significant competition from other House committees—a streamlining that has allowed the panel to conduct its work without fighting over investigative turf.
Having multiple cooks in the kitchen doesn’t necessarily doom an investigation, but it can make it unwieldy. Consider the investigation that led to Trump’s first impeachment, for example. In September 2019, when Pelosi announced that the House would proceed under an “umbrella of impeachment inquiry,” she directed the chairs of six separate committees to assemble information on the president’s potentially impeachable conduct and transmit it to the Judiciary Committee, which has jurisdiction over impeachment. The public hearings as part of that investigation, while led by House Permanent Select Committee on Intelligence chair Rep. Adam Schiff (D-Calif.), were technically held by three committees jointly (Intelligence, Oversight, and Foreign Affairs), adding to their length and complexity.
Today, in contrast, the more or less exclusive nature of the Jan. 6 committee’s purview has given the committee a great deal more control over when and how it presents its findings to the public. Viewers interested in learning about Jan. 6 only have to tune in to one set of hearings, convened in digestible, narratively driven two-hour chunks.
What’s more, where the committee has had competition from other cooks—mainly in the form of the Department of Justice—it built an early lead. After the committee’s first public hearing in July 2021, it entered a long period of radio silence, continually promising that more hearings were forthcoming. As time went on, this delay became the subject of much hand-wringing—including from us. But the promise that there would be a public product of the investigation remained, as spelled out in the committee’s authorizing resolution. A grand jury investigation, by contrast, operates with no such similar commitment to an eventual public disclosure—and information about the Justice Department’s high-level criminal probe into Jan. 6 has emerged only slowly through press reports. That has allowed the committee to become, more or less, the sole authoritative voice telling the story of the insurrection.
Yet another reason for the committee’s success so far are the resources allocated to it. Over the first four months of 2022, the committee spent an amount of money comparable to other permanent committees in the House—whose responsibilities extend far beyond completing a single investigation. (It’s worth noting that the Jan. 6 committee should have filed reports on its spending for additional months but has yet to do so.) What’s more, funding for regular committee operations in the House is generally divided across the majority and minority parties in a roughly two-thirds/one-third ratio. But given the unity of purpose of the Jan. 6 panel, we might think of its funding as somewhat more comparable to the majority staff of a committee—meaning that the Jan. 6 investigators effectively had a much larger budget for their narrower set of responsibilities than a typical set of congressional investigators.
According to the most recent available quarterly data from the House of Representatives, as of late March, the committee employed roughly 50 employees, including a former Republican member of Congress. Since then, they’ve also brought on, in some capacity, the former president of ABC News, who reportedly is helping the committee produce its hearings as gripping television. Some high-profile staffing decisions had made headlines for unfortunate reasons, especially early on: Two hires, a Department of Homeland Security attorney who had spent time overseeing the agency’s intelligence operations and a former CIA inspector general, have previously been accused of retaliating against whistleblowers. But the staff’s ranks are filled mostly with the kind of experienced Hill staff and former federal government lawyers one would want when trying to conduct a serious investigation. All this suggests that the importance of sufficiently resourcing Congress’s work is one important lesson that the legislative branch should learn from the Jan. 6 committee’s successes thus far.
But even in acknowledging good work, we need also to be honest about the limits of the committee’s model and approach. A great deal of what was so effective about the Jan. 6 committee will not apply so easily to much of what Congress does—nor should we want it to.
The single-minded commitment of a group of bipartisan House members to delineate out-of-bounds conduct in a democracy is worth celebrating at this moment, and we certainly want legislators to find common ground on the rule of law and reining in executive branch overreach. But bipartisanship should be seen as a means to an end, not an end in and of itself. And when it comes to many other ends—including issues arguably central to the perpetuation of American democracy, like access to the ballot box—enormous divisions exist between the parties, even between Democrats and anti-Trump Republicans.
Kinzinger and Cheney, for example, both voted against the John Lewis Voting Rights Advancement Act: legislation that would strengthen provisions of the original Voting Rights Act limited by recent Supreme Court decisions. That doesn’t mean that Kinzinger and Cheney are insincere in their work on the Jan. 6 committee, but it does show that their definition of what it takes to protect democracy is narrower than that of most Democrats—and, we’d argue, artificially constrained. Given this landscape, full bipartisan cooperation is often not the standard by which efforts should be judged. The current reality of the Republican Party means there are things worth doing to promote democratic norms on which bipartisanship may not be possible.
It’s not just partisan incentives that usually push members of Congress away from the kind of behavior we’ve seen by the representatives on the Jan. 6 committee: It’s also their own individual motivations that make the deference to colleagues seen in the hearings a relatively uncommon sight. For legislators, being reelection minded rarely involves sitting on the sidelines—especially not the sidelines of a nationally televised hearing that gets ratings usually seen by the likes of Sunday Night Football. That’s simply not how ambitious politicians typically behave.
That said, each member of the Jan. 6 panel did get the chance to lead or co-lead at least one hearing. Could committees structure other congressional hearings to give different members their moments in the spotlight at different times, which might reduce the incentives for soundbite-type grandstanding that so often characterizes public hearings? Perhaps. There’s certainly reason to think that experimenting with hearing formats shows promise as a way to create space for genuine in-depth inquiry. (One of us has testified before the House Select Committee on the Modernization of Congress under one such alternative approach.) And as Congress scholar Josh Chafetz has argued, “congressional overspeech” is often, in fact, an important tool in Congress’s arsenal.
But the task before the Jan. 6 committee—a wide and deep investigation of an attempt to undermine the peaceful transition of power—is far from Congress’s usual workload. What works as a format for communicating the findings uncovered in a high-profile, complex investigation will not necessarily work for much of the chamber’s other business. As the committee itself learned as new information came in during the course of its planned hearing schedule, hearings aren’t sealed off from the rest of the political world; they can have broader effects that need to be responded to in subsequent sessions. A “learn first, present later” strategy, as the Jan. 6 committee initially adopted, has limits—especially if the goal is to inform legislation that might pass before the end of a Congress.
We’ve argued previously in Lawfare that the Jan. 6 committee’s approach to its work has been shaped profoundly by the concept of a “legislative purpose,” as emphasized by the Supreme Court in Trump v. Mazars. But even though the committee has said it plans to release legislative recommendations along with its final report, legislation isn’t the panel’s focus. This became increasingly clear when the Jan. 6 committee pushed back the start date for its hearings later and later in order to continue gathering information, indicating that almost all of the committee’s time and energy would be expended on investigating rather than developing legislation. (The panel also lacks the power to actually markup any legislation itself, though it could work on proposals that would be handed off to other committees with legislative jurisdiction.) The panel’s staff, though large, tends toward those in investigative, rather than legislative, roles. Most other congressional committees can’t—and shouldn’t—neglect the need to work on legislation, a task that puts demands on their time and resources.
When Washington Post media critic Margaret Sullivan rendered her verdict on this summer’s hearings, she offered four theories as to why the sessions managed to dominate the news cycle. One of them was the fact that the hearings have had a “compelling central character” in the form of Cheney, who, by virtue of her participation, may be destroying her political future. As Sullivan puts it, “whatever you think of her politics, [that’s] admirable.” But not everything Congress does can have a captivating character as its center—and a legislature that did run on that kind of personality-based politics would likely have serious deficiencies. Attracting only members who see the institution as just, in the words of American Enterprise Institute’s Yuval Levin, “a platform for themselves to perform on and to raise their profiles and be seen” would rob it of the kind of legislative workhorses whose presence is necessary for the House and Senate to fulfill their basic responsibilities.
In declaring that the Jan. 6 committee has “succeeded,” there’s also the question of how to define success. The committee’s own understanding of its purpose has clearly prioritized the importance of public storytelling—rather than legislating, for example. In that sense, it’s doing very different work than some of the other committees conducting complex investigations during the Trump years, like the Senate Intelligence Committee’s behemoth investigation into Russian election interference in 2016, which focused on producing a dense record of thousands of pages long but put little energy into publicly communicating the committee’s damning findings. This emphasis on storytelling also distinguishes the Jan. 6 committee’s work from that of the Justice Department, which—as Attorney General Merrick Garland has repeatedly emphasized—is not meant to take place in the public eye.
But the Justice Department has a far more leisurely schedule. The clock has been ticking on the Jan. 6 committee’s investigation from the beginning: In the likely, though not assured, event of a Republican victory in the midterm elections, a GOP-controlled House would surely decline to reauthorize the committee in the new Congress. The Jan. 6 investigators must assume that their work has a hard deadline of January 2023. And because of that, there are surely difficult trade-offs being made around what to prioritize in the limited time that remains to finish this work. There’s no way to know, for example, whether the decision to put together the show-stopping slate of hearings meant making hard decisions about what angles of investigation not to pursue. Some areas of inquiry, including around the internal congressional security apparatus, probably warrant more investigation than the committee has appeared to give them thus far—and though committee members have announced that the hearings have produced new avenues of inquiry, investigators must surely know that they’re racing the calendar.
So far, the Jan. 6 committee has been stunningly effective at meeting its revealed purpose, in part because of the amount of funding and staff work it’s been able to devote to its crucial project. The panel is unusual in a number of ways that limit the ability to scale its approach up, but it shares with its fellow committees one basic truth of congressional work: Time is the most limited of resources.