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.

MOVING AHEAD WITH A JANUARY 6 SELECT COMMITTEE PROBE

DEMOCRATS TAKE THE HIGH ROAD AND

DO WHAT NEEDS DOING

                                                

House Speaker Nancy Pelosi (D-Ca.) has moved ahead with plans for a select committee that will investigate the January 6 insurrection at the U.S.

Capitol. Pelosi named eight committee members and designated Mississippi Congressman Bennie Thompson the chair. She  took the action following a June 30 House vote, mainly along party lines, favoring establishment of such a panel. That, in

turn, followed Senate rejection of a bipartisan, 9/11-style commission that would have investigated the events of January 6. Five people died as a result of the riot, including a police officer.  The dangerousness and brutality of the insurrectionists become more evident with each Justice Department release of new January 6 video.

Despite our preference for a bipartisan commission, we say Democrats have taken the only reasonable course Republicans left to them. It was a step they had no choice but to take. Congress had to fulfil its obligation to investigate what happened and decide who’s ultimately responsible.

A fierce urgency demands that  Congress find out who bears responsibility for the January 6 insurrection. In a democracy, not moving forward with an investigation of a matter like this would have been a dereliction of duty.

After Senate Republicans nixed the bipartisan commission option, only the select committee approach remained.  Republicans can complain all they want about the “partisan” nature of a select committee inquiry, but they could have prevented this circumstance. They declined the bipartisan commission under pressure from former President 

Donald Trump, who wants  nothing that might pin the blame on the person likely most responsible -- him. Republican fidelity to Trump’s wishes eviscerates the party’s viability as a defender of democracy and the nation’s most cherished ideals.       

 

The Urgency

Anyone who looks at the video or reads the published accounts of January 6 can only conclude that what occurred was an insurrection in the classic sense of the term – an effort at overthrowing the democratically expressed will of the people. We contend those who won’t recognize the events of January 6 as such now stand as opponents of democracy and are at war with the United States. A functioning democracy seeks out and holds accountable people who did what the insurrectionists did.

Fidelity to core American values requires that both

the general public and elected officials pursue full accountability for those who orchestrated and participated in what happened.  The public should, through social media, blogging, letters to the editor, and every other legal means, promote the need for that full accountability.

Meanwhile, elected officials owe a duty because of an oath they must uphold. That oath obligates them to protect and defend the United States Constitution. Those who won’t do that should resign their offices.

No one should believe the forces unleashed that day will just disappear. Trials of some of the 500 people already charged may tell us something

about the continuing threat posed by the right wing, white supremacist groups believed at the center of the January 6 riot. Trials, however, with their focus on the guilt or innocence of individuals, can never reveal the whole story of something like January 6.  That limitation makes the work of the select committee essential. It must find out who bears responsibility and let the nation know. Then, the country and its government can take steps that would prevent a repeat.

 

Committee Membership

Pelosi’s selection of Republican Representative Liz Chaney of Wyoming generated the most attention

among the members named. Republicans kicked Cheney out of her leadership role in their caucus because she voted in favor of Trump’s impeachment. She was one of two Republicans who backed a select committee

investigation (Adam Kinzinger of Illinois was the other). Chaney’s been adamant that Congress should get to the bottom of the January 6 incident.

In addition to Chairman Thompson, Pelosi put three Californians, Zoe Lofgren, Adam Schiff, and Pete Aguilar on the panel. Florida’s Stephanie Murphy, Jamie Raskin of Maryland, and Elaine Luria of Virginia round out the group.

That left the question of who, if anyone, House Minority Leader Kevin McCarthy would name.

McCarthy led the Republican complaints about “partisanship” in the process. His whining sounded hollow, given the fact he rejected the bipartisan commission, despite having gotten everything Republicans asked for in talks that led up to the vote on the measure that would have created a commission.

Thompson indicated the select committee won’t waste time getting to work. Its first hearings could come before the end of July. We’d welcome that. We believe those unwilling to find out what really happened now stand in opposition to democracy. The sooner Congress and the public can call out

exactly who falls into that category, the better. Are we or are we not a democracy? Congress bears the responsibility, starting with the work of this select committee, of providing us with an answer to that central question.

THE HEARINGS: IN PRAISE OF OUR CONSTITUTION

America got a civics lesson last week as three patriots testified before the House Intelligence Committee's impeachment probe into President Donald J. Trump. There, before the television cameras, the country saw how the Constitution was designed to work.  Whatever flaws the    230

year-old document had at its inception and, for that matter, still has, the nation got a tutorial in what’s right about it. Americans could say at week’s end maybe things haven’t gone to hell in a handbasket after all.  Maybe the system of checks and balances works.

State Department official George Kent, the

Kent, Taylor, and Yovanovitch preparing to testify at  Trump impeachment hearing

current U.S. Ambassador to Ukraine William Taylor, and former  Ambassador to Ukraine Marie Yovanovitch told much the same story in their riveting testimony. Trump held up U.S. military aid in an attempt to bribe Ukraine's president into announcing an investigation into former Vice President Joe Biden and a discredited conspiracy theory that Ukraine, not Russia, interfered in the 2016 election. Only the most partisan Trump backers now contend the President didn’t engage in attempted bribery.   

The Scene

When Chairman Adam Schiff (D-Cal) convened the hearings Wednesday, the

impeachment inquiry moved into a new phase. Committee members knew what the witnesses would say because those witnesses had given sworn testimony in closed-door depositions. Now, it was showtime, so the American people could see what the investigators had found.

The hearings aimed at the key audiences in this saga. A vote in the House impeaching Trump now seems a foregone conclusion. Whether he stays or goes, therefore, depends on potentially persuadable Republican senators who might support ousting Trump and swing voters (the 15-25% of the country that doesn’t have its mind made up) whose support for conviction might produce those Republican votes in the Senate.

The Witnesses

Kent and Taylor, men with long histories of unflappable, professional

government service in administrations headed by both Democrats and Republicans demonstrated personal appeal and exhaustive knowledge of the subject at issue and of their Ukraine jobs. Both challenged Trump's credibility in

ways that arguably overcame the inherent power of his office. Both eschewed politics, making Republicans look small in trying to paint them as partisan hacks.

It was Yovanovitch who, thanks in part to an insane blunder by Trump, ended the first round of hearings as a star.  When she left the hearing room Friday after, the crowd erupted in spontaneous applause, sending chills down the spines of Americans across the nation. During her testimony, Trump attacked Yovanovitch

in a mean-spirited Tweet, blaming her for unrest in Somalia, one of the early stops in her 33-year career as a foreign service officer. Schiff read her the Tweet and she acknowledged she found it “very intimidating.”

 

Schiff told her some members of Congress "take witness intimidation very, very seriously," a hint an

article of impeachment might well include that charge. Commentators and legal observers noted that a specific provision of the United States Code forbids witness intimidation. Not long after

Trump’s Tweet, a federal jury convicted long time Trump associate Roger Stone of witness tampering and six other felonies carrying a potential prison sentence totaling fifty years.

If the testimony of Kent, Taylor, and Yovanovitch wasn’t enough, a development late Friday made things even worse for Trump and his allies. When Taylor testified Wednesday, he revealed he’d just learned that a member of his embassy staff overheard Trump on a phone call with U.S. Ambassador to the European Union Gordon Sondland talking about seeking an investigation into Biden and the 2016 election allegations.  Taylor hadn’t known of the call when he gave his deposition.

        

The staff member surfaced Friday night, appearing for his own deposition and offering an opening statement describing the call he overheard. David Holmes’s account of the call torpedoed one Republican defense – that witnesses like Taylor, Kent, and Yovanovitch had only provided “hearsay,” since they hadn’t actually heard Trump seeking the investigations. 

The Genius of Our Constitution

We will in the future say more about the meaning of the constitution and its role in this impeachment exercise. Suffice it to say now that what we've seen demonstrates the hope and the cynicism embedded in the document.  Donald Trump is being held to account because the framers set up a system that recognized the difficulty in dealing with a corrupt, lawless leader. The past week demonstrates that as perhaps never before. 

 

The hope in the constitution lies in the fact it contains the tools for dealing with someone like Trump. Congress checks the executive branch through institutional mechanisms like the power of the purse, the oversight function, and, ultimately, impeachment. Though Trump has tried frustrating the process by preventing his lieutenants from testifying, career public servants in the executive branch like Kent,

Taylor and Yovanovitch defied him and testified anyway.  The framers no doubt understood personal courage would come into play a some point. If Trump wins re-election, we wonder if he will push these brave men and women out of public service and replace them with enablers willing to do his bidding.

There is more. Bad actors sometimes require a cynical approach, meaning the courts and criminal prosecution have their roles, as the Roger Stone verdict demonstrates.  Where would the Watergate-based impeachment of Richard Nixon have been without the U.S. Supreme Court’s unanimous ruling in the Nixon v. United States tapes case? 

 

Our constitution wasn’t and isn’t perfect. This isn't the place for expounding on the

evil of the three-fifths compromise and other flaws. We can get to them later.  This is the place, however, for pointing out that what

we saw last week shows why this nation has survived as long as it has and maybe why we’ll survive the calamity of the Trump presidency.