Congress

A Proposal for a Commission on the Capitol Siege

By Herb Lin, Amy Zegart
Friday, January 15, 2021, 11:01 AM

On Jan. 6, the U.S. Capitol was assaulted and occupied for the first time since 1814. Five people were killed, including Brian Sicknick, a Capitol Police officer who was beaten to death while attempting to repel the siege. The insurrectionists were ultimately unable to block the congressional certification of Joe Biden as president-elect and Kamala Harris as vice president-elect. However, the outcome could have been mass carnage on the floors of the Capitol. And it constituted an unprecedented breakdown of the most basic function of American democracy—the peaceful transfer of power from one president to the next.

Republican Reps. Rodney Davis, John Katko, and James Comer have introduced a bill that would establish a national bipartisan commission to investigate the Jan. 6 attack. The bill models the proposed body after the 9/11 Commission, an independent entity established by Congress and charged with understanding what went wrong and what should be done to prevent such attacks in the future. That commission uncovered critical facts, assessed root causes, brought bipartisan focus to an ongoing threat and galvanized the nation.

We agree that a Jan. 6 Commission is needed. To be effective, however, the commission’s purpose and focus must be laid out with greater specificity than current proposals have offered. Here, we attempt to sketch out the justification for a commission as well as the mandate, major areas of inquiry and legislative language that we believe are needed to guide this effort.

A note of caution: This proposal assumes that any insurrectionist activity occurring between now and the inauguration is handled without significant incident. If that assumption proves false, the need for an investigative commission will remain—indeed, it will be even greater—but the specifics of the mandate will likely need to be altered.

Accountability, healing and national reconciliation are vital to restoring American democracy in the days ahead. These processes take different forms and occur in different forums ranging from criminal prosecution to political remedies and action in the private sector. Regardless of what other measures are taken, however, it is critical for the nation to conduct a systematic, thorough and bipartisan examination of this event to understand how it happened and how to prevent similar violent attacks on democratic processes in the future.

The commission’s mandate should not be limited to uncovering what happened and making recommendations. It should also be tasked with collecting and preserving information about this unprecedented event for future generations of policymakers, scholars and citizens. The foundation of civics is shared narrative and history.

Specifically, the commission should be charged with:

  1. Preparing a full and complete account of the circumstances surrounding the Jan. 6 siege of the United States Capitol, including the lead-up to the event and the response to it.
  2. Providing recommendations to prevent future violent attacks for political purposes against American democratic institutions, including but not limited to its facilities and leaders.
  3. Holding public hearings and issuing a public report to generate bipartisan support for and citizen awareness of ground truths regarding the Capitol siege, responses by relevant government agencies and other entities and individuals, and the need for reforms.
  4. Creating a permanent government repository of relevant documents, online communications, imagery and video relating to the siege and the government’s response for future assessments, scholarship, education and policy.

Ten Major Areas of Inquiry

The commission should address questions including, but not limited to, the following 10 major areas of inquiry:

  1. Intelligence warning: What intelligence, including but not limited to open-source intelligence, was collected, by whom, and what assessments were made about the prospects of violent extremist activity connected to overturning the legitimate results of the 2020 presidential election? What assessments were distributed to parties responsible for maintenance and oversight of Capitol security, including but not limited to the House and Senate sergeants at arms, the Washington, D.C., chief of police, the mayor of Washington, D.C., and the majority and minority leadership of the Senate and the House of Representatives? When were these assessments, and what was their content? How and to what extent, if any, was the Capitol siege connected to earlier threats and plots against the governor of Michigan and state and local election officials in other states? What lessons should have been learned from these or other “near misses”? Based on these lessons, who or what entity might have catalyzed additional and more timely action?
  2. Involvement of U.S. governmental actors: What official or unofficial roles, if any, did U.S. actors from federal, state and local agencies play in organizing, inciting, carrying out, or participating in the siege, or in obstructing emergency response? What was the scope and nature of their sympathy to the occupiers, if any? What impact or influence did their sympathy, if any, have on the events of Jan. 6 or the goals of the occupiers?
  3. Involvement of foreign actors: How and to what extent, if any, did foreign governmental or nongovernmental actors play in organizing, inciting or carrying out the siege? (To date, no evidence has been publicly reported to indicate that this is the case, but the possibility cannot be ruled out and therefore warrants some investigation.)
  4. Law enforcement planning: How did the Capitol Police, Washington, D.C., police, National Guard and other relevant agencies prepare for the protest of the Jan. 6 congressional joint session to approve the 2020 Electoral College results and the possibility of violence? What critical mistakes were made? By whom? Why? How did these plans compare to other instances of mass gatherings at the Capitol with the potential for violence? What resources, organizations and communications should have been utilized to protect the U.S. Capitol from attack?
  5. The siege itself: What is the specific timeline of events that unfolded on Jan. 6? Who was involved? What were their motives and objectives? What weaponry, equipment and iconography did they bring? What were other possible outcomes (both more positive and more negative), and what key junctures and actions could have facilitated or averted them?
  6. Crisis response: How did the Capitol Police, other security forces, and government organizations, including but not limited to the White House, respond to the siege? What actions, if any, taken by individuals in these organizations needlessly endangered lives and exacerbated the crisis? What actions, if any, taken by individuals in these organizations saved lives and prevented further harm? What accounts for the difference in response on Jan. 6 compared to other mass gatherings at the Capitol, including during the summer of 2020?
  7. The role of administration officials in the incitement of violence and obstruction of emergency response.
  8. The role of technology and media companies in the organization and incitement of violent activity at the siege and emergency response.
  9. Accountability: Why did Capitol Police and the FBI allow participants in the siege to leave the Capitol without arrest? How were these participants investigated, by whom, and how effectively?
  10. Corrective action: What changes in law, rules, regulation or policy for both the executive and legislative branches are necessary to reduce the likelihood of future violent attacks for political purposes against American democratic institutions, facilities and leaders? What would be the impact of such changes on privacy and civil liberties in the United States?

To the maximum extent possible, the information used by the commission to undergird its analysis, findings, conclusions and recommendations should be made available to the public. Only when the American public understands the events of Jan. 6 and how they came to pass will we be able to build a foundation for ensuring that similar events will not threaten American democracy again.

Below, we have sketched out proposed legislative language for the establishment of a commission along these lines, drawing on the legislation establishing the 9/11 Commission.

TITLE XX--NATIONAL COMMISSION ON THE SIEGE AND OCCUPATION OF THE U.S. CAPITOL

SEC. 1 ESTABLISHMENT OF COMMISSION.

There is established in the legislative branch the National Commission on the Siege and Occupation of the U.S. Capitol in the United States (in this title referred to as the “Commission”).

SEC. 2. PURPOSES.

The purposes of the Commission are to—

  1. make a full and complete accounting of the circumstances surrounding the siege and occupation of the United States Capitol building on January 6, 2021, including the lead-up to the event and the response to it, and the extent of the United States' preparedness for, and immediate response to, the siege and occupation;
  2. hold public hearings and issue a public report to establish a set of facts regarding the 2021 Capitol siege, responses by relevant government agencies and other entities and individuals, and recommendations for reform;
  3. ascertain, evaluate, and report on the evidence developed by all relevant governmental agencies regarding the facts and circumstances surrounding the siege and occupation;
  4. create and/or identify the content for a permanent government repository of relevant documents, online communications, imagery and video relating to the siege and the government's response for future assessments, scholarship, and policy; and
  5. investigate and report to the President and Congress on its findings, conclusions, and recommendations for corrective actions that can be taken to prevent future violent attacks for political purposes against American democratic institutions, facilities, and leaders.

SEC. 3. COMPOSITION OF COMMISSION.

(a) Members.--The Commission shall be composed of 10 members, of whom--

  1. 1 member shall be appointed by the President, who shall serve as chairman of the Commission;
  2. 1 member shall be appointed by the leader of the Senate (majority or minority leader, as the case may be) of the Democratic Party, in consultation with the leader of the House of Representatives (majority or minority leader, as the case may be) of the Democratic Party, who shall serve as vice chairman of the Commission;
  3. 2 members shall be appointed by the senior member of the Senate leadership of the Democratic Party;
  4. 2 members shall be appointed by the senior member of the leadership of the House of Representatives of the Republican Party;
  5. 2 members shall be appointed by the senior member of the Senate leadership of the Republican Party; and
  6. 2 members shall be appointed by the senior member of the leadership of the House of Representatives of the Democratic Party.

(b) Qualifications; Initial Meeting.--

  1. Political party affiliation.--Not more than 5 members of the Commission shall be from the same political party.
  2. Nongovernmental appointees.--An individual appointed to the Commission may not be an officer or employee of the Federal Government or any State or local government.
  3. Other qualifications.--It is the sense of Congress that individuals appointed to the Commission should be prominent United States citizens, with national recognition and significant depth of experience in such professions as governmental service, law enforcement, the armed services, law, public administration, intelligence gathering, commerce (including aviation matters), and foreign affairs.
  4. Deadline for appointment.--All members of the Commission shall be appointed on or before XXXX.
  5. Initial meeting.--The Commission shall meet and begin the operations of the Commission as soon as practicable.

(c) Quorum; Vacancies.--After its initial meeting, the Commission shall meet upon the call of the chairman or a majority of its members. Six members of the Commission shall constitute a quorum. Any vacancy in the Commission shall not affect its powers, but shall be filled in the same manner in which the original appointment was made.

SEC. 4. FUNCTIONS OF COMMISSION.

(a) In General.--The functions of the Commission are to--

  1. conduct an investigation that—
    1. investigates relevant facts and circumstances relating to the siege and occupation of the U.S. Capitol on January 6, 2021, including any relevant legislation, Executive order, regulation, plan, policy, practice, or procedure and any speech or public representation of U.S. political leaders and their appointees; and
    2. may include relevant facts and circumstances relating to--
      1. intelligence agencies;
      2. Federal, State, and local law enforcement agencies in the Washington, D.C., area and across the United States;
      3. the Departments of Defense and Homeland Security;
      4. the flow of assets to domestic organizations that may have played a role in the siege and occupation or its organization thereof;
      5. internet service providers and online media platforms;
      6. foreign involvement of any nature in the siege and occupation or the organization thereof;
      7. other areas of the public and private sectors determined relevant by the Commission for its inquiry;
  2. identify, review, and evaluate the lessons learned from the siege and occupation of the Capitol on January 6, 2021, regarding the structure, coordination, policies, and procedures of the Federal Government, and, if appropriate, State and local governments and nongovernmental entities, related to detecting, preventing, and responding to such an incident; and
  3. submit to the President and Congress such reports as are required by this title containing such findings, conclusions, and recommendations as the Commission shall determine, including proposing organization, coordination, planning, management arrangements, procedures, rules, laws, and regulations.

SEC. 5. REPORT

(a) Questions to be addressed: At a minimum, the Commission shall address the following questions:

  1. Intelligence warning:
    1. What intelligence was collected, by whom, and what assessments were made about the prospects of violent extremist activity connected to overturning the legitimate results of the 2020 presidential election?
    2. What assessments were distributed, to whom, and when?
    3. What actions, if any, were taken in response to the receipt of intelligence assessments?
    4. What “open source” information was available to intelligence and law enforcement agencies that could or should have been considered or assessed?
    5. How and to what extent, if any, was the January 6, 2021, Capitol siege connected to earlier threats and plots against the Governor of Michigan and State and local election officials in other states?
    6. What lessons should have been learned from these or other earlier "near misses" that could have catalyzed additional and more timely action?
  2. Foreign involvement:
    1. How and to what extent, if any, did foreign actors, governmental or non-governmental, play a role in organizing, inciting, or preparing for the siege and occupation?
  3. Involvement of domestic governmental actors:
    1. What official or unofficial roles, if any, did U.S. actors from Federal, State, and local agencies play in organizing, inciting, carrying out, or participating in the siege or in obstructing emergency response?
    2. What was the scope and nature of their sympathy to the occupiers, if any?
    3. What impact or influence did their sympathy, if any, have on the events of January 6, 2021, or the goals of the occupiers?
  4. Law enforcement planning:
    1. How did the Capitol Police, Washington, D.C., police, National Guard, and other relevant agencies prepare for the protest of the January 6, 2021, congressional joint session to approve the 2020 Electoral College results and the possibility of violence?
    2. What critical mistakes were made?
    3. By whom were these mistakes made? Why were they made?
    4. How did these plans compare to other instances of mass gatherings at the Capitol with the potential for violence?
    5. What resources, organizations, and communications should have been utilized to protect the U.S. Capitol from attack?
    6. How and to what extent was the National Guard involved in planning?
  5. The siege itself:
    1. What is the specific timeline of events that unfolded on January 6, 2021?
    2. Who was involved? What were their motives and objectives?
    3. What weaponry, equipment, and iconography did they bring?
    4. What were other possible outcomes (both more positive and more negative), and what key junctures and actions could have facilitated or averted them?
  6. Crisis response:
    1. How did the Capitol Police, other security forces, and government organizations respond to the siege?
    2. What actions taken by individuals or organizations needlessly endangered lives and exacerbated the crisis?
    3. What actions taken by individuals or organizations saved lives and prevented further harm?
    4. What accounts for the difference in preparation and response for the events planned for January 6, 2021, as contrasted with other protest events at the Capitol in the summer of 2020?
  7. The role of administration officials:
    1. What role did administration officials play, if any, in the incitement of violence and obstruction of planning for and emergency response to the siege and occupation?
  8. The role of technology and media companies:
    1. What role did technology and media companies play, if any, in the incitement of violence and obstruction of planning for and emergency response to the siege and occupation?
  9. Accountability:
    1. Why did Capitol Police and the FBI allow participants in the siege and occupation to leave the Capitol without arrest?
    2. How were these participants investigated, by whom, and how effectively?
  10. Corrective actions:
    1. What changes in law, regulation, or policy are necessary to reduce the future likelihood of events similar to the siege and occupation of the U.S. Capitol?
    2. What would be the impact of such changes on privacy and civil liberties in the United States?
    3. What non-compulsory measures should technology and media companies take to reduce the future likelihood of events similar to the siege and occupation of the U.S. Capitol?

(b) Public availability of Commission reports and information:

  1. The Commission shall issue a final report that is available to the public.
  2. All other reports of the Commission shall be available to the public to the maximum extent feasible.
  3. At its discretion, the Commission may produce non-public annexes to its reports that contain information about sources and methods for gathering sensitive information or information that, if released, would compromise the conduct of an ongoing criminal investigation.
  4. Information considered by the Commission shall be available to the public to the maximum extent feasible consistent with the need for protecting sources and methods for gathering sensitive information or protecting information that, if released, would compromise the conduct of an ongoing criminal investigation.
  5. The Commission shall create a website that includes information about its membership, public activities, and public findings.

SEC. 6. POWERS OF COMMISSION.

(a) In General.--

  1. Hearings and evidence.--The Commission or, on the authority of the Commission, any subcommittee or member thereof, may, for the purpose of carrying out this title--
    1. hold such hearings and sit and act at such times and places, take such testimony, receive such evidence, administer such oaths; and
    2. subject to paragraph (2)(A), require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents, as the Commission or such designated subcommittee or designated member may determine advisable.
  2. Subpoenas.--
    1. Issuance.--
      1. In general.--A subpoena may be issued under this subsection only--
        1. by the agreement of the chairman and the vice chairman; or
        2. by the affirmative vote of 6 members of the Commission.
      2. Signature.--Subject to clause (i), subpoenas issued under this subsection may be issued under the signature of the chairman or any member designated by a majority of the Commission, and may be served by any person designated by the chairman or by a member designated by a majority of the Commission.

    2. Enforcement.--
      1. In general.--In the case of contumacy or failure to obey a subpoena issued under subsection (a), the United States district court for the judicial district in which the subpoenaed person resides, is served, or may be found, or where the subpoena is returnable, may issue an order requiring such person to appear at any designated place to testify or to produce documentary or other evidence. Any failure to obey the order of the court may be punished by the court as a contempt of that court.
      2. Additional enforcement.--In the case of any failure of any witness to comply with any subpoena or to testify when summoned under authority of this section, the Commission may, by majority vote, certify a statement of fact constituting such failure to the appropriate United States attorney, who may bring the matter before the grand jury for its action, under the same statutory authority and procedures as if the United States attorney had received a certification under sections 102 through 104 of the Revised Statutes of the United States (2 U.S.C. 192 through 194).

(b) Contracting.-- The Commission may, to such extent and in such amounts as are provided in appropriation Acts, enter into contracts to enable the Commission to discharge its duties under this title.

(c) Information From Federal Agencies.--

  1. In general.-- The Commission is authorized to secure directly from any executive department, bureau, agency, board, commission, office, independent establishment, or instrumentality of the Government, information, suggestions, estimates, and statistics for the purposes of this title. Each department, bureau, agency, board, commission, office, independent establishment, or instrumentality shall, to the extent authorized by law, furnish such information, suggestions, estimates, and statistics directly to the Commission, upon request made by the chairman, the chairman of any subcommittee created by a majority of the Commission, or any member designated by a majority of the Commission.
  2. Receipt, handling, storage, and dissemination.-- Information shall only be received, handled, stored, and disseminated by members of the Commission and its staff consistent with all applicable statutes, regulations, and Executive orders.

(d) Assistance From Federal Agencies.--

  1. General services administration.--The Administrator of General Services shall provide to the Commission on a reimbursable basis administrative support and other services for the performance of the Commission's functions.
  2. Other departments and agencies.-- In addition to the assistance prescribed in paragraph (1), departments and agencies of the United States may provide to the Commission such services, funds, facilities, staff, and other support services as they may determine advisable and as may be authorized by law.

(e) Gifts.--The Commission may accept, use, and dispose of gifts or donations of services or property.

(f) Postal Services.--The Commission may use the United States mails in the same manner and under the same conditions as departments and agencies of the United States.

SEC. 7. NONAPPLICABILITY OF FEDERAL ADVISORY COMMITTEE ACT.

(a) In General.--The Federal Advisory Committee Act (5 U.S.C. App.) shall not apply to the Commission.

(b) Public Meetings and Release of Public Versions of Reports.--The Commission shall--

  1. hold public hearings and meetings to the extent appropriate; and
  2. release public versions of the reports required under section 610(a) and (b).

(c) Public Hearings.--Any public hearings of the Commission shall be conducted in a manner consistent with the protection of information provided to or developed for or by the Commission as required by any applicable statute, regulation, or Executive order.

SEC. 8. STAFF OF COMMISSION.

(a) In General.--

  1. Appointment and compensation.--The chairman, in consultation with vice chairman, in accordance with rules agreed upon by the Commission, may appoint and fix the compensation of a staff director and such other personnel as may be necessary to enable the Commission to carry out its functions, without regard to the provisions of title 5, United States Code, governing appointments in the competitive service, and without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title relating to classification and General Schedule pay rates, except that no rate of pay fixed under this subsection may exceed the equivalent of that payable for a position at level V of the Executive Schedule under section 5316 of title 5, United States Code.
  2. Personnel as Federal employees.--
    1. In general.--The executive director and any personnel of the Commission who are employees shall be employees under section 2105 of title 5, United States Code, for purposes of chapters 63, 81, 83, 84, 85, 87, 89, and 90 of that title.

    2. Members of commission.--Subparagraph (A) shall not be construed to apply to members of the Commission.

(b) Detailees.--Any Federal Government employee may be detailed to the Commission without reimbursement from the Commission, and such detailee shall retain the rights, status, and privileges of his or her regular employment without interruption.

(c) Consultant Services.--The Commission is authorized to procure the services of experts and consultants in accordance with section 3109 of title 5, United States Code, but at rates not to exceed the daily rate paid a person occupying a position at level IV of the Executive Schedule under section 5315 of title 5, United States Code.

SEC. 9. COMPENSATION AND TRAVEL EXPENSES.

(a) Compensation.--Each member of the Commission may be compensated at not to exceed the daily equivalent of the annual rate of basic pay in effect for a position at level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day during which that member is engaged in the actual performance of the duties of the Commission.

SEC. 10. SECURITY CLEARANCES FOR COMMISSION MEMBERS AND STAFF.

The appropriate Federal agencies or departments shall cooperate with the Commission in expeditiously providing to the Commission members and staff appropriate security clearances to the extent possible pursuant to existing procedures and requirements, except that no person shall be provided with access to classified information under this title without the appropriate security clearances.

SEC. 11. REPORTS OF COMMISSION; TERMINATION.

(a) Interim Reports.--The Commission may submit to the President and Congress interim reports containing such findings, conclusions, and recommendations for corrective measures as have been agreed to by a majority of Commission members.

(b) Final Report.--Not later than 18 months after the date of the enactment of this Act, the Commission shall submit to the President and Congress a final report containing such findings, conclusions, and recommendations for corrective measures as have been agreed to by a majority of Commission members. The Commission shall also issue a version of the final report that is available to the public.

(c) Termination.--

  1. In general.--The Commission, and all the authorities of this title, shall terminate 120 days after the date on which the final report is submitted under subsection (b)(2)
  2. Administrative activities before termination.--The Commission may use the 120-day period referred to in paragraph (1) for the purpose of concluding its activities, including providing testimony to committees of Congress concerning its reports and disseminating the final report.

SEC. 12. FUNDING.

(a) Transfer From the Department of Homeland Security.-- Of the amounts authorized to be appropriated by this Act and made available in XXX for the U.S. Customs and Border Patrol, not to exceed $5,000,000 shall be available for transfer to the Commission for purposes of the activities of the Commission under this title.

(b) Duration of Availability.--Amounts made available to the Commission under subsection (a) shall remain available until the termination of the Commission.

Topics: