Uphill: January 6 Investigations Stall
Plus: The debate over the filibuster ramps up.
Good morning. The House and Senate are both officially out for two weeks of recess. Members will return in mid-April. (I hope Uphill readers are also planning to take some time off in the coming days. We all need it.)
Partisan Squabbles and Lack of Momentum Hinder January 6 Probes
When Senate Democrats decided not to seek witness testimony during former President Donald Trump’s second impeachment trial, they said important unanswered questions surrounding the Capitol attack could be investigated later by congressional committees or an independent commission.
Nearly three months after the January 6 mobbing of the building, and a month after the Senate voted to acquit Trump of inciting insurrection, the congressional effort to learn more about the circumstances leading up to and during that day has been lackluster at best. Senate committees have held a couple of hearings, but with mixed success. And in the House, negotiations for a bipartisan commission have come to a standstill.
In the first high-profile hearing last month, senators largely fell short of holding three former Capitol security officials accountable for their failure to protect the complex. Senators also didn’t fully drill down on discrepancies between their testimonies, and most members of the panel were too ready to accept the witnesses’ attempts to deflect blame onto the intelligence community.
A second hearing, featuring the commanding general of the National Guard, was more productive. Senators learned from Maj. Gen. William Walker that it took more than three hours for Pentagon leaders to approve a request for National Guard assistance after he received a call from then-U.S. Capitol Police Chief Steven Sund asking for help. But much of what Walker had to say was already public information: He had shared key details in an interview with the Washington Post more than a month earlier, on January 26. Frustratingly, that hearing also included a Pentagon official who was not actually involved in the response on January 6 and who could not answer many of the pressing questions senators had about the military’s handling of the day’s events.
Senators said afterward that they wanted to hear from the former Pentagon officials who were making decisions that day—but more than three weeks later, such a hearing has not been scheduled.
Even as the public investigative hearings have been on hiatus, Hill staff are still working behind the scenes to pin down details. The Senate Rules and Homeland Security committees have issued requests for documents and information to a slew of government agencies. Senators have also suggested they could question some witnesses privately. And it’s very likely, thanks to dedicated staff members, that a final written report from the joint committees will be more revelatory and useful as a fact-establishing exercise than the two open hearings the joint Senate committees have held so far would suggest.
“Our two productive bipartisan oversight hearings helped provide many answers and accountability for the failures around this attack. Moving forward, we continue to investigate, collect, and review materials, as well as speak with current and former officials to conduct a thorough examination of the preparation and response failures surrounding January 6th,” the leaders of the two committees wrote in a statement yesterday. “The Committees expect to release a bipartisan report on our investigation in the coming months. We are committed to providing the American people, including those who work in the Capitol, with the answers they deserve as well as recommendations to ensure this never happens again."
There have also been some promising signs on the House side, although progress has slowed down in recent weeks. A House Appropriations subcommittee that oversees the U.S Capitol Police held a fruitful hearing with the acting chief of the force last month. Members knew the subject well and came into it with genuine accountability in mind. It was refreshing, especially after the Senate’s hearing earlier the same week with the former security officials. (I covered that hearing in Uphill here.)
But many key questions still remain unanswered about the security preparations and response to the attack on the Capitol. Foremost among them, as mentioned above: Why was the Pentagon so slow to respond to the request for National Guard assistance? Another: What did former President Trump do in the hours between the initial breach of the Capitol and when the building was finally secured that evening?
Congressional leaders initially expressed hope about looking into these questions through an independent commission, rather than solely relying on various committees. Such a body would include prominent experts who don’t currently serve in government. And like the commission that investigated the attacks of September 11, 2001, proponents say, a January 6 commission could help build public trust about the facts of the attack. It could also lead to helpful recommendations about how to avoid a similar scenario in the future.
Yet progress on the initiative has halted, as Democrats and Republicans clash over what it should look like and which specific topics should be within its purview.
House Speaker Nancy Pelosi’s initial proposal for the commission was deeply partisan and hobbled the conversation from the get-go. Her draft resolution would empower top Democrats to select seven members of the commission, while Republican leaders would appoint only four. The original 9/11 commission was equally divided, consisting of five appointees made by Republicans and five made by Democrats.
Pelosi’s plan would also give the chair of the commission, appointed by President Joe Biden, unilateral subpoena power. Under the proposal, subpoenas could otherwise be issued by a majority of members of the commission—a majority the seven Democratic appointees would control easily. The 9/11 commission, in contrast, was only able to issue subpoenas by bipartisan agreement between the chairman and the vice chairman, or by a majority of six members of the commission. Under that arrangement, if all five Democratic appointees or all five Republican appointees wanted to subpoena a given witness, they would still need to win support from at least one appointee of the other party to proceed.
Some Democrats argue a more partisan slant is justified this time around: Most Republicans, after all, went along for months with Trump’s lies about election fraud that led to the Capitol attack. But the move ensured that top Republicans would reject Pelosi’s plan. “It was a totally bipartisan effort,” Senate Minority Leader Mitch McConnell said of the 9/11 commission on Fox News last month. “And that's what is needed in order to have credibility attached to the final report. That kind of commission I am open to; nothing close to what the Speaker is proposing am I open to.”
The leaders of the 9/11 commission also panned Pelosi’s approach early on, emphasizing that the bipartisan nature of their panel was essential to its successes. Former New Jersey Gov. Thomas Kean, the Republican who chaired the 9/11 investigation, told Politico the report “won’t have as much confidence from the American people” and it “won’t be as reliable” unless the commission has equal representation for the two parties. And former Rep. Lee Hamilton, the Democrat who served as vice chair of the commission, said it “does not sound to me like a good start; it sounds like a partisan beginning.”
The resolution would give the power of selecting GOP members of the commission to McConnell and House Republican Leader Kevin McCarthy. McCarthy has waffled on holding Trump responsible to any degree—and he privately encouraged and ultimately voted along with the effort to contest state results. McConnell has been far more forceful, despite his vote against convicting Trump for inciting the attack.
“There's no question—none—that President Trump is practically and morally responsible for provoking the events of the day,” McConnell said on the Senate floor after the trial concluded. “No question about it. The people who stormed this building believed they were acting on the wishes and instructions of their president.”
Regardless of who McConnell and McCarthy would select for the commission, Democratic leaders say the partisan breakdown of the panel isn’t their main priority. Pelosi told reporters last month she isn’t attached to the 7-4 split, and the makeup of the commission could be “easily negotiated” with Republicans. She is more focused on the focus and scope of the investigation, she said.
Republicans haven’t helped matters by arguing the commission should look into violence over the summer in the wake of the brutal police killing of George Floyd—violence that was, of course, awful, but not directly related to the election and the mobbing of the Capitol. Democrats reasonably view this as an attempt to deflect the conversation and distract from holding Trump accountable. Still, the two events aren’t completely separate. Although the GOP’s motivations on this point appear mostly political in nature—“Democrats do bad things too!”—there should be room for examining how the violence after Floyd’s death actually did play a role in the military’s preparations for Trump’s massive rally. Public criticism of the D.C. National Guard’s handling of the summer’s unrest seems to have prompted Pentagon officials to be more wary about deploying personnel to protect the Capitol building in advance of and during January 6.
Both chambers of Congress would have to pass a resolution to establish the commission. Pelosi emphasized last week that it is still a priority, despite the slow takeoff. “We must get to the truth of how the January 6 assault happened, and we must ensure that it cannot happen again,” she wrote in a letter to members. “It is essential that we proceed in a bipartisan way in order to have a respected outcome.”
Asked about the latest in her conversations with Republicans on Thursday, Pelosi indicated the talks remain stalled, with key sticking points about the resolution’s language.
“I’m optimis—not optimistic. I’m persistent in terms of we get to the truth,” she said, adding that congressional committees that have jurisdiction will continue to hold hearings.
“We have to find the truth, and we will, and we’re not walking away from that,” Pelosi told reporters. “Now, we’d love it to be as bipartisan as possible, but we have other, shall we say, paths should we not come to something that would be similar to the 9/11 commission.”
Filibuster Debate Intensifies
When the Senate comes back April 12, the chamber will turn to a range of Democratic policies—none of which are expected to meet the 60-vote threshold required for passage.
Democratic leaders are planning to hold votes on a sweeping election reform package, gun restrictions, and immigration bills, among other priorities. Without 10 Republicans supporting these measures—which is unlikely as the bills are currently drafted—they won’t be able to pass under the Senate’s current rules. It will be a stark difference from Democrats’ relatively speedy passage of a massive coronavirus aid package earlier this month. They used a special process for that legislation to bypass the need for Republican votes—but because of procedural constraints, experts say it can be used only a couple of times before the 2022 midterms.
With these bills, Democrats are set to run headfirst into the brick wall of the legislative filibuster. And as they watch Republicans reject some of their biggest priorities, the progressive effort to dispense with the 60-vote requirement will grow only more intense in the coming weeks.
“Now that we have passed the American Rescue Plan, the Senate must continue to make progress on other issues facing the American people,” Senate Majority Leader Chuck Schumer said in a floor speech Thursday. “When the Senate returns to session, our agenda will be no less ambitious than it was over the past few months.”
There are still several senators standing in the way of scrapping the filibuster, foremost among them Sens. Joe Manchin and Kyrsten Sinema. Manchin has offered a series of vague and confusing statements about whether he is open to modifying the filibuster. From what he’s said so far, his position can best be described as: open to reforming the filibuster to make it more difficult for Republicans to block legislation, but not at all sold on taking such action yet.
Beyond Manchin and Sinema, though, there remain a number of other Democrats who are still uncertain about changing the chamber’s rules and have shared reservations about it. And there’s also the question of how many of the bills Schumer plans to bring to the floor could actually pass, even if Democrats didn’t have the filibuster to worry about. With only 50 votes in the Senate and Vice President Kamala Harris acting as tiebreaker, there is no room for dissent about the details of controversial bills. A few Democrats have raised concerns over aspects of the election reform package, as well as the gun control measures.
President Biden reiterated Thursday that he supports changing the filibuster rules to require senators to be present and speaking on the Senate floor to block legislation.
“It’s being abused in a gigantic way,” Biden said of the current filibuster.
Republicans are stepping up their messaging against any change to the rules. Nebraska Sen. Ben Sasse delivered a 30-minute speech touting the benefits of the 60-vote threshold earlier this week.
“Pass laws today with 50-plus-one majority and watch them be repealed tomorrow with 50-plus-one majority,” he said. “Our nation then would just pinball from one policy agenda to another. It makes politics too central in the life of the American people to allow fickle 51-49 majorities to change the whole direction of the nation.”
“The ‘nuclear option’ completely eviscerates minority rights. It is not simply a change in degree but a change in kind. It is a discontinuous action that is a sea change, fundamentally restructuring what the Senate is all about,” Sasse said, quoting Biden. “It would change the Senate from a body that protects minority rights to one that is purely majoritarian. Thus, rather than simply being the next logical step in accommodating the rules of the Senate to the demands of legislative and policy modernity, the ‘nuclear option’ is a leap off the institutional precipice.”
An aide to Sasse told The Dispatch on Thursday that it took a little while for the Senate floor staff and for Sen. Chris Murphy, who was presiding in the chamber during Sasse’s remarks, to realize Sasse was performing Biden’s 2005 speech verbatim.
“When he started talking about Orrin Hatch being on the floor with him, that’s when I think it started to click,” the aide said. “There were some stifled laughs when he talked about standing up to Richard Nixon.”