Opinion | 7 Big Questions for the Jan. 6 Committee

On Thursday night, in a primetime hearing, the House Jan. 6 select committee will begin formally unveiling its findings from its work over the past year investigating the siege of the U.S. Capitol. This may be the most intensive investigation in the history of Congress, with potentially far-reaching historical and political implications. But the real impact of the committee’s work will turn first and foremost — even before the understandable questions about whether it can break through in our fractured media environment or actually affect public opinion — on what the committee has learned as a factual matter.

Thus far, the committee, which has conducted more than 1,000 witness interviews, has already generated an array of discrete and significant revelations, despite being hampered by many Republicans’ refusal to cooperate. The hearings, however, will provide the public’s first insight into whether the committee has been able to answer, in something approximating an authoritative and comprehensive manner, some of the major questions within its broad investigative purview. Those questions may concern what happened on Jan. 6 itself, the failure of federal law enforcement to adequately safeguard the Capitol that day or, perhaps most importantly, the broader, extra-legal campaign by former President Donald Trump, along with his supporters and allies, to overturn the results of the election.

Here are seven yet-unanswered questions that are of particular interest.

1. Did White House or Trump campaign officials coordinate with militia leaders, and if so, what did they know about the possibility for violence?

On Monday, the Justice Department released an indictment charging five leaders of the Proud Boys with seditious conspiracy. Like the sedition case against leaders of the Oath Keepers, the allegations suggest a deliberate and sophisticated plan among key militia figures to engage in violence at the Capitol that is at odds with the notion that the riot was simply a spontaneous and unplanned collective outburst.

What, if anything, did Trump and those in his orbit know about all this? Were people affiliated with the White House or the campaign aware of these sorts of preparations and plans — perhaps through potential Trump surrogates like Roger Stone? The answers would clearly bear on these people’s fitness to hold power in the future, but anyone who may have tacitly sanctioned or facilitated a plan that included violence would also face serious legal exposure of their own.

2. What was Trump doing in the White House throughout three hours of rioting?

The committee has devoted considerable effort to constructing a precise timeline of Trump’s actions over the course of the 187 minutes when he was in the White House watching as the rioting unfolded — reportedly watching the spectacle on television while resisting entreaties by staff to intervene by doing something as simple as telling his supporters to leave. The hearings will tell us how successful the committee has been on this front and, in particular, whether investigators have been able to assemble a minute-by-minute account of Trump’s actions and communications that afternoon.

Trump’s abdication of his responsibility to the country is an important part of the story of the day’s events, but the fact-finding imperative on this score is all the more important because Trump may very well be on the ballot again. As a result, the public would benefit from the most wide-ranging, rigorous account possible of Trump’s movements, actions and communications over the course of the riot.

In theory, Trump’s inaction might also bear on potential criminal liability for the former president in at least two ways. First, some legal commentators, as well as committee vice chair Liz Cheney (R-Wyo.), have suggested that Trump’s passivity could serve as a basis for criminal liability under the statute that prohibits obstruction of congressional proceedings. This would, however, be an unusual position for a prosecutor to take (much less a prosecutor in this Justice Department), because criminal law generally holds people liable for affirmative actions that they take, as opposed to failures or even refusals to act in the absence of a clear legal duty. Second, Trump’s apparent inaction provides non-trivial circumstantial evidence that he intended to incite violence during his speech before protestors earlier in the day.

3. What were the people around Trump doing during this period?

Since the riot, we have been subjected to conspicuously self-serving accounts in the media about how government officials and Trump aides, such as Trump’s daughter Ivanka and House minority leader Kevin McCarthy, tried and failed to persuade Trump to intervene as he watched the siege unfold. McCarthy, for instance, reportedly told Trump on a call from the Capitol, “You have to denounce this” — an account that, if true, would seem to be out of character for the pliant and slow-witted man who wants to be the next speaker of the House.

How direct and insistent were the efforts by those closest to Trump to stop the chaos? The answer is relevant not just to assessing Trump’s own actions that afternoon but also to evaluating the competence and fitness of these people to hold positions in the government, now or in the future.

4. Did Trump and his associates believe their false claims of voter fraud?

Moving beyond the events of Jan. 6 itself, the committee has also been working to gather the facts concerning the extra-legal, non-violent machinations by Trump and his allies to remain in power. A central pillar of this effort was the litany of false claims of election fraud that began almost immediately after election night. Were Trump and his surrogates intentionally lying — aware that their claims were false in real time — or were they somehow deluded?

The committee provided a limited preview of its conclusion on this point in March, in a court filing that argued that Trump and others had probably committed criminal misconduct based in part on “an aggressive public misinformation campaign” in the run-up to Jan. 6. As to Trump in particular, the committee cited evidence (some of which had previously been undisclosed) that Trump made claims of election fraud even after “the President’s own appointees at the Department of Justice and the Department of Homeland Security, along with his own campaign staff, had informed the President that his claims were wrong.”

Most Republicans appear to believe that the election was truly stolen from Trump, and that mistaken belief is deeply corrosive to our civic and political order. If there is any remaining hope of disabusing some of these people of this belief, it may require a thorough and detailed demonstration by the committee that the claims of election fraud were not just false but that Trump and others were lying all along.

5. Who briefed Trump for his call with Georgia Secretary of State Brad Raffensperger?

One particular instance in which Trump’s false claims may have run afoul of criminal law is the infamous call with Raffensperger in which Trump cycled through a litany of false claims of election fraud and asked Raffensperger to come up with a way to alter the vote count in his favor. If Trump knew that these claims were false when he was making them, that would mean he probably violated federal election fraud laws.

But what about all of the people behind the scenes who were involved? If you listen to the call closely, it sounds as if Trump may have been reading from talking points or notes, but we do not know who — in the White House or the campaign — was providing Trump with this false information or how exactly they came up with it. The conduct of those people warrants serious exposure as well — in order to fully contextualize the call and in order to determine whether they should face legal consequences themselves if they intended to mislead Raffensperger.

The issue highlights a broader and critically important subject that the committee will hopefully focus on: the central role of the sycophants, functionaries and enablers who helped Trump during this period, without whom he would have been unable to mount his extraordinary effort to stay in office.

6. What other efforts were made by Trump and his allies to enlist state legislators and election officials to overturn the state election results?

We have long known that the call to Raffensperger was not the only effort to improperly sway state officials to help Trump; it just happens to have been recorded. There were other, similar meetings and calls, but we know comparatively little about what was said and done during these discussions. The committee has reportedly been working to compile a more complete account.

How extensive and sophisticated were these efforts? Were any of them as explicit as the call with Raffensperger? Who else, besides Trump, was involved? These questions are important not just to assess the conduct of those in Trump’s orbit but also to ensure that unscrupulous actors at the state level — people who may not have comported themselves as well as Raffensperger did — can be held accountable by their local constituents.

7. Did Trump’s lawyers actually believe their various legal arguments?

The other major pillar of Trump’s campaign to stay in office was a series of ad hoc legal arguments that Trump and his allies sought to use to persuade state officials and later Mike Pence that they had the power to swing the results to Trump. The committee apparently intends to use the hearings to explain to the public why these efforts were ultimately baseless as a legal matter, but the subject also presents a variation on a running theme: Were these people advancing sincerely held positions, or were they being dishonest?

We can already infer from the tenuousness of the legal arguments, coupled with the fact that nominally competent lawyers like John Eastman were involved, that these were not exactly good faith views on the law. The committee revealed in its March court filing that Greg Jacob, a lawyer for Pence, testified that Eastman at one point “acknowledged that he would lose 9-0 at the Supreme Court” if the court were to review his theory that Pence could unilaterally refuse to count some of the electoral votes on Jan. 6.

If true, this is significant evidence that Eastman knew his theory was at odds with constitutional law — all the more striking considering that, at the time, Trump had appointed three of the nine members of the court. As the committee noted in its filing, a deliberate effort to provide pretextual legal rationales in order to keep Trump in office would raise questions about whether Eastman and others may have broken the law in order to unlawfully obstruct the certification.

A fulsome public record can facilitate accountability and deterrence in other ways — perhaps supporting efforts to disbar the lawyers involved or simply generating public or professional disapproval that could disincentivize other lawyers from engaging in similar conduct in the future. A more complete understanding of these efforts might also help generate momentum for reform of the Electoral Count Act, one of the few areas in which there may be legitimate bipartisan support in Congress.

Trump is a singular figure in American politics, but he did not act alone, and his attack on American democracy would not have gotten as far if he had. More generally, the committee could provide a significant public service by illuminating just how extensive the network of participants was and how intentional their potential malfeasance was — if not because it would necessarily stop Trump or another future president from attempting something similar in the future, but because it could help to deprive them of the necessary foot soldiers to pull it off by deterring lower-level people from participating in another outrageous campaign to prevent the lawful transfer of presidential power.

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By: Ankush Khardori
Title: Opinion | 7 Big Questions for the Jan. 6 Committee
Sourced From: www.politico.com/news/magazine/2022/06/09/jan-6-committee-hearings-questions-00038177
Published Date: Thu, 09 Jun 2022 03:30:00 EST

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