THE JANUARY 6 INSURRECTION INVESTIGATION: WHERE WE STAND

Investigations into the January 6 insurrection plod

along with three unmistakable  characteristics. In some ways, these characteristics typify and symbolize the state of our politics. They show the strengths and weaknesses of American democracy in 2021.

·     Democrats and a few brave Republicans in Congress keep moving methodically toward uncovering the truth, using tried and true tools and processes that fit the circumstances.

·     The courts are handling January 6 prosecutions as we’d expect – on a case-by-case basis, balancing the societal interest in holding those responsible accountable with individual rights afforded every criminal defendant, despite claims those  defendants are political prisoners.

·     Republican politicians stand in the way. The fact that’s happening –as odd as it is – represents a good starting place for an evaluation of where the investigation stands, nearly nine months after the deadly attack on the capitol.

 

The GOP Strategy: You Didn’t Really See 

WhatYou Thought You Saw

One remarkable thing stands out about the January 6 insurrection – we saw it on television.Republicans, however, continue their effort at convincing Americans it wasn’t what it looked like. In addition to outlandish statements from Republican members ofCongress about capitol rioters resembling tourists, the overall GOP strategy rests on the notion that if Republicans keep saying there’s nothing worth seeing, Americans will agree and lose interest.

House Minority Leader Kevin McCarthy probably had that in mind when he threatened telecomcompanies asked to preserve phone records. Those records might show that Republican members of Congress helped facilitate the attack. McCarthy said those companies shouldn’t comply with document requests made by the bipartisan House Select Committee that’s conducting a probe into January 6. He claimed complying would violate federal law andRepublicans would remember that, presumably with dire consequences, if and when the GOP retakes the House of Representatives. McCarthy no doubt wants to minimize the importance of the investigation and make complying not normal. After all, what people thought they saw wasn’t big a deal. Wasn’t much to see, right?

Then there’s the matter of prematurely exonerating former President Donald Trump. Select CommitteeChairman Bennie Thompson and Vice Chair Liz Cheney, early in September, dismissed as “baseless” McCarthy’s claim that various federal agencies, including the Justice Department, had concluded Trump didn’t incite or provoke the January 6 violence. Many reasons exist for believing he did. It appears McCarthy thought he could give the public another reason for seeing the investigation as overblown and unnecessary. There’s just not much there, right?

 

Democrats (and two Republicans) Keep Doing

the Right Thing

While the Republican side show and misinformation campaign continue, the Select

Committee keeps moving the investigation forward methodically.  Federal agencies and private companies have now responded to the committee’s first round of requests for documents. Thompson indicated the panel needs more information from social media companies. Documents the committee wants could show the involvement of Trump, White House aides, Trump family members, and GOP legislators in the planning and execution of the insurrection.

                                    

It’s known, for example, that Trump talkedon January 6 with several Republican members of Congress while the insurrection remained in progress.  If it takes a little longer to get the documents that may lead to confirmation of the substance of those communications, so be it. Tracking down such facts requires painstaking investigation and analysis. The committee is doing that, as it should, using tools common to this kind of work. If the president of the United States committed treason against the American government, we want to know the details of that, right?

 

The Courts and Their Balancing Act

Some Americans no doubt would prefer the criminal cases against the January 6 insurrectionists move faster. More than 600 defendants have been charged with various crimes in connection with the attack. Most of them are not being held in jail while they await trial.  Some, however, have had their release conditions revoked because judges have concluded, in individual cases, that those defendants pose a threat. One, a former police officer, bought 37 guns after his arrest. That individual disrupted a court hearing and accosted a probation officer. A magistrate judge decided he should remain in jail.

That situation demonstrates how courts have balanced individual rights and concerns about

January 6 defendants who continue creating havoc. That’s the nature of the criminal justice system and things are likely to continue moving along that way for a long time to come. Meantime, Trump supporters and far rights groups spent a weekend demonstrating in Washington and elsewhere claiming the insurrectionists were just protesters exercising their constitutional rights and are being held wrongfully. Oh, really?

                                      

As much as everyone might hope the process of investigating January 6 and holding those responsible accountable might proceed differently or move faster, the current state of affairs seems like what we’ll have for a while. Republican

politicians have shown no interest in unearthing what happened. McCarthy once said the GOP would conduct its own investigation and seek “real answers.” No evidence exists that’s happening now or that it will happen. McCarthy and other Republicans

will likely continue doing  what they’re doing now – getting in the way, making disingenuous or outright false statements, and claiming nothing important happened.

Meantime, the Select Committee, which includes

only two Republicans, and the courts will keep

doing what they’re doing -- their jobs.

THE STRANGE CASE OF DONALD TRUMP AND THE DEFENSE PRODUCTION ACT: A WAR TIME PRESIDENT WHO WON’T PULL OUT ALL THE STOPS TO WIN THE WAR

President Trump’s dance with the Defense Production Act of 1950 (DPA) makes us

wonder why he hasn’t embraced the DPA in getting ventilators and other protective equipment in the hands of those battling the coronavirus. In a March 18 Executive Order, Trump declared ventilators and protective equipment

“essential to the national defense” against the spread of the virus, the standard required by the DPA for production and distribution of critically needed equipment. The range of explanations spans a continuum from benign to cynical.  The

shortage of medical equipment compels a closer look at what’s happened.

The DPA gives a president broad powers that potentially could alleviate shortages. Trump doesn’t lack awareness of the law. He’s spoken, however, of “hopefully” not needing it against the virus and using it only in a “worst-case scenario.” The fact the nation now has more coronavirus cases than any other country sounds like a “worst-case scenario.”  

                                     

                     

Some History

The DPA’s roots rest in the Second World War. Congress gave President Franklin

Roosevelt broad authority for ordering that industry convert facilities and produce war material. When the Korean War started, President Harry Truman needed

Image Courtesy Wikimedia Commons

similar power. Congress enacted the DPA, a law that has been reauthorized over 50 times and has been regularly invoked since. Trump claimed the coronavirus pandemic makes him a “wartime president,” though, mysteriously, he’s not using all available resources for winning the war. 

The DPA gives presidents three kinds of power: (1) authority requiring that businesses accept and prioritize government contracts deemed necessary for national defense; (2) power for establishing regulations that allocate materials, services, and facilities for national defense; and (3) authority for managing the civilian economy assuring access to scarce materials for defense needs. Trump seemingly thinks the federal

government has only a limited role in the war since he declared the federal government isn’t a “shipping clerk.” Trump has acted as if each state is an independent nation, left to fend for itself. 

 

Trump, the Virus, and the DPA

General Motors, Medtronic, ResMed, Royal Philips, and Vyaire Medical could produce

essential supplies. None have shown enthusiasm at the prospect. Each, if ordered to produce essential supplies, could do so and, of course, would want a large share of the $2.2 trillion CARES bailout Congress passed and the president signed March 27.

The most visible company in the discussion, General Motors, could shift factories from building automobile engines to building ventilators. Trump’s order didn’t immediately require that GM convert to ventilator production.  GM, in fact, said it was going ahead with plans for manufacturing ventilators, but reportedly wanted $1 billion for doing so, millions of it upfront. A dispute over costs erupted between GM and the administration and discussions broke off. A bit later Trump said he’d use the DPA in requiring that General Motors accept and prioritize contracts for ventilators, the number being determined by the Secretary of Health and Human Services. 

Trump came under fire from House Speaker Nancy Pelosi for his reluctance to use the

DPA. He finally, on April 2, said he was invoking the law and requiring that three companies – 3M, General Electric, and Medtronic – produce masks. Even GOP Senator Ted Cruz of Texas urged that Trump “exercise these delegated powers to the full extent necessary.”  Trump, however, hasn’t ordered that General Motors,

or any of the other companies, begin production of other needed materials and has even gone so far as saying invoking the DPA would effectively “nationalize” firms. We find Trump’s reluctance about invoking the DPA baffling and he hasn’t explained his reasons.  Still, we have some ideas.

A Range of Possibilities

We start with the most benign potential reason. Imagining any president hesitating about injecting the government into the business of private companies isn’t difficult. Democrats and Republicans say they believe

in limited government. Staying out of a firm’s decisions about what it will produce, when, and at what price comports with that philosophy. Republican orthodoxy mandates that the government avoid intrusion into the operational life of private business as much as possible (tax cuts notwithstanding). We see this explanation near one end of a benign-to-cynical continuum.

Nearer the middle of that continuum, we

might suggest a political rationale. Perhaps, Trump fears antagonizing his political base if he strongly and enthusiastically uses the DPA. Many are true believers in Republican orthodoxy, despite their willingness to feed from the $2.2 trillion CARES trough. These supporters would likely regard any deviation from the party’s antigovernment norm as heresy, punishable in right wing media (and maybe at the ballot box). When Trump strayed a little from the line and sought a compromise with Democrats on his border wall, howls from Rush Limbaugh and Laura Ingraham forced his hand and he backed off the compromise idea.

                  

On the far end of the continuum, Trump might just be appeasing friends in the industry. If he goes all-in with using the DPA in forcing production of large amounts of different materials, imagining that he will ruffle the feathers of friends in the manufacturing world follows. Could the president simply want protection for his captains-of-industry colleagues from costs associated with converting their operations to producing medical equipment? Is Trump putting the interests of his friends above what is best for the country right now?

It’s possible Trump’s reluctance springs from a combination of the factors we’ve identified and others. His real reasons could cover our

entire continuum. The mounting death toll and the need for addressing the health needs of millions of Americans, however, suggests using every tool in the box, including the DPA.