Impeachment Is Over. What Comes Next?

Nancy Pelosi proposes a commission to investigate and report on the facts of the January 6 assault on the Capitol.

Good morning. The House and Senate are out this week. You may have noticed we missed an issue of Uphill on Friday—I was feeling under the weather, and we thought we’d just wait until the impeachment trial concluded to send this edition. We won’t send Uphill this Friday, either: Congress is out and it’s my anniversary later this week. I’ll be logging off for some peace and quiet. 

What Next?

Seven Republicans voted on Saturday to convict Donald Trump on an incitement of insurrection charge, making it the most bipartisan vote in an impeachment trial in U.S. history. But not bipartisan enough: A two-thirds supermajority of 67 votes was required for conviction, and the final tally was 57-43. One year ago, Utah Republican Mitt Romney became the first senator to vote to convict a president of his own party during Trump’s first impeachment. This time he was joined by Sens. Richard Burr, Bill Cassidy, Susan Collins, Lisa Murkowski, Ben Sasse, and Pat Toomey. 

Cassidy offered the most straightforward reasoning for his vote: “Our Constitution and our country is more important than any one person. I voted to convict President Trump because he is guilty.” And that was it—that’s his whole statement (delivered first in text and later on video in front of a red alligator).

Many Republican senators refused to consider the case on its merits, hiding behind the widely disputed notion that trying a former president is unconstitutional. Shortly after voting to acquit Trump on those grounds, Senate Minority Leader Mitch McConnell pinned the blame for the attack on the Capitol on Trump.

“There is no question that President Trump is practically and morally responsible for provoking the events of that day,” McConnell said. “The people who stormed this building believed they were acting on the wishes and instructions of their president. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth.”

The trial has concluded, but there’s still a lot we don’t know about January 6. How did the Capitol Police leadership and other security officials so utterly fail to prepare rank-and-file officers for expected violence beforehand—and what, crucially, was Trump doing during the hours in between the building first being breached and when it was finally cleared by law enforcement? 

Republicans have also recently raised some valid questions about House Speaker Nancy Pelosi’s role in security preparations. Pelosi’s office has described a letter from top Republicans asking about her stance leading up to the attack as a “transparently partisan attempt to lay blame on the Speaker.” While that may be true to some extent—Republicans are increasingly coalescing around criticizing Pelosi for the Capitol’s readiness, despite the fact that McConnell would have also been involved—the public would benefit from more details about how Pelosi approached the situation and whether claims from former Capitol Police chief Steven Sund about optics concerns factoring into decisions regarding the National Guard earlier that week are accurate or not.

Lawmakers are already investigating some of the matters at hand. The Senate Rules and Administration Committee, for one, is set to hold hearings about the security failures involved. But a panel more independent of the daily workings of Congress and with a wider scope could conduct a more thorough investigation to set the record straight. 

In the aftermath of the attacks of September 11, 2001, Congress passed legislation creating a bipartisan commission to carry out a fact-finding mission and create an official account of what happened. 

Pelosi said Monday in a letter to lawmakers that Democrats’ next step will be to establish an “outside, independent 9/11-type” commission to investigate and report on the facts of the attack. She added the commission will look at issues relating to the peaceful transfer of power and law enforcement preparedness. 

Her announcement came after the leaders of the 9/11 commission—former New Jersey Gov. Tom Kean and former Rep. Lee Hamilton—sent a letter to President Joe Biden urging him to pursue something similar. 

“The shocking and tragic assault of Jan. 6th on the U.S. Capitol requires thorough investigation, to ensure that the American people learn the truth of what happened that day,” they wrote on Friday, according to the Washington Post. “An investigation should establish a single narrative and set of facts to identify how the Capitol was left vulnerable, as well as corrective actions to make the institution safe again.”

Both chambers would have to approve legislation creating the commission, including details about its parameters, resources, and a process for selecting members of the panel. Because Democrats control both chambers, it wouldn’t necessarily need support from Republicans to pass. Whether Republicans vote for it will likely depend on the details of the bill text and how members of the commission will be chosen. House Minority Leader Kevin McCarthy has previously indicated support for a bipartisan commission, although he presented it at the time as an alternative to the impeachment process. 

“There should be a complete investigation about what happened,” Cassidy, the Louisiana Republican who voted to convict Trump, said Sunday. “What was known, who knew it and when they knew—all that—because that builds the basis so this never happens again.”

Here Comes the AUMF Debate

We at The Dispatch want to spend some time in Uphill on issues that aren’t in the daily news cycle but are still important and could well drive the news in the days and months to come. One of those issues—the protracted debate over congressional authorizations for military force—has the potential to re-emerge this year with a new president and a Democratic Congress.

For nearly 20 years, presidents have used the 2001 and 2002 authorizations for the use of military force for various conflicts around the globe, including operations Congress could not have envisioned when they were first passed. The first AUMF greenlit the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” The second authorization, passed in 2002, approved the use of force “against the continuing threat posed by Iraq” in advance of the 2003 U.S. coalition invasion and deposal of Iraqi leader Saddam Hussein. 

Lawmakers have long debated how best to replace these outdated authorizations with one relevant to the current war on terror—and how to increase congressional oversight and prevent abuses. 

Now that President Joe Biden has taken office, some lawmakers hope the effort can pick up new momentum. Five House Democrats, led by Rep. Barbara Lee, wrote to Biden last month calling on him to work with Congress to get rid of the 2002 powers and to reform the 2001 authorization, which underpins much of the United States’ global war on terrorism and activities in Afghanistan. 

“We agree that our government is past due for a reexamination of our security needs and authorities to determine whether we are directing our efforts and resources in ways that truly make Americans more secure,” they said in the letter, which was obtained by The Dispatch. The existence of the letter was first reported by Politico last month. 

“Our view, which we hope you share, is that by reexamining outdated AUMFs we can align the legal authorities we need with the threats we face as well as our responsibilities to the U.S. Constitution and the American people,” they wrote. 

They added Biden should call for the immediate repeal of the 2002 authorization as a first step. “Additionally, we urge you to work closely with Congress to consider how the 2001 AUMF should be addressed,” the members said.

Signaling support for action among top Democrats and not just progressives, the letter was signed by the chairs of the powerful House Foreign Affairs, Intelligence, and Rules committees. They wrote that any updated authorization must name mission objectives, adversaries, and targeted countries. They also said it would have to include specific reporting requirements to increase transparency and a sunset clause to force Congress to weigh in on the matter regularly.

But Congress has struggled to make progress on revising the authorizations through the years, even when the debate has been in the public eye during the Obama administration’s initial activities against the Islamic State and later, when four U.S. soldiers died in a 2018 ambush in Niger. 

There are several reasons lawmakers haven’t been able to agree to a new authorization. First, the politics: Members of Congress don’t particularly want to have to take an affirmative vote authorizing military force. As with many policy areas, especially one as controversial as this, many in the legislative branch would rather leave these questions up to the president. Second, there are deep divisions over the details. Members don’t agree on how long the provision should last, whether it should be limited to a specific geographic area, or how exactly to handle forces beyond named terror groups. Some would like to leave more power for the president in making determinations as the situation evolves, while others feel strongly about imposing more oversight and safeguards for how it will be used.

It’s clear that any legislation repealing and revising the authorizations would have to come with buy-in from the White House. Some Biden administration officials have said they are open to scrapping the 2002 authorization and reforming the one from 2001. Secretary of State Antony Blinken notably told senators during his confirmation hearing that he does not believe existing authorizations would justify military strikes against Iran, and he said he would work with Congress to address the AUMFs.

“We did try to do this a few years ago, and it’s not easy to get to yes,” said Blinken, who previously served during the Obama administration. “For some, the porridge is too hot. For others, the porridge is too cold, and can we get a consensus around what’s just right? But I would be determined and committed to working on that.” 

Blinken added that Biden “feels very strongly about this” and said it’s “long past time” for Congress to act on the question.

There have been several proposals through the years about how to replace the 2001 authorization with updated language about adversaries and goals. One plan, introduced by Sen. Tim Kaine and former Sen. Jeff Flake in 2017, would have repealed both the 2001 and 2002 authorizations and replaced them with a new AUMF targeting al-Qaeda, the Taliban, and ISIS. It would have expired after five years and included provisions for more congressional oversight of activities outside of Afghanistan, Syria, Iraq, Yemen, Libya, and Somalia and against forces that may be targeted as “associated” with the named adversary groups.

The proposal didn’t pick up enough support to advance. 

“I frankly think this is, partly, hard because people don’t want to cast a war vote,” Kaine said at the time. “Because there’s going to be a consequence. It should be the gravest vote we ever cast. People want to duck from that if they can.”

A 2018 plan from Kaine and former GOP Sen. Bob Corker gave more wiggle room to the executive branch—it didn’t have a firm expiration date or significant restrictions on military operations related to the war on terror. 

Oregon Sen. Jeff Merkley proposed an alternative the same year that was far heavier on congressional oversight. Merkley’s bill contained restrictions on what kinds of organized armed groups could be targeted under the authorization. The president would also be required to certify to Congress every six months that the armed groups in question, like al-Qaeda, ISIS, and the Taliban, continue to qualify under the legislation’s requirements. The whole authorization would also expire after three years.

Congress will likely debate these questions again in the coming months as lawmakers begin to draft the annual national defense authorization act. In the absence of a larger agreement about how to replace or revise the 2001 powers, it’s possible lawmakers could try to repeal the 2002 AUMF on its own. That authorization is viewed by members from both parties as unnecessary to support current operations and ripe for abuse. 

The House included a repeal of the 2002 authorization in its version of the 2020 defense policy bill, but it was stripped out after negotiations with the Senate. Most recently, the House again voted to scrap the 2002 AUMF after former President Donald Trump cited it, in part, as justification for his strike against Iranian Gen. Qassem Suleimani last January.

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