RUTHFULLY YOURS

There is internal division in the House January 6 committee regarding what legislative agenda to recommend to prevent a repeat of the 2020 election hijinks, according to an Axios report by Jonathan Swan and Hans Nichols. The fissure was inevitable.

On one side, this is a Democrat-dominated committee formed to address a supposed crisis. Like any Democratic partisan, the committee is determined to exploit the crisis to push for long-coveted radical change, even though the proposed change is largely unrelated to the causes of the crisis. On the other side, there is the Republican ally, Congresswoman Liz Cheney of Wyoming, whom Democrats have accepted into the fold so they can claim their gambit is bipartisan. However opportunistic that was, Cheney inconveniently opposes the Democrats’ policy ideas.

To conduct a proper investigation, a congressional committee must have a bona fide legislative purpose. The January 6 committee has never had such a purpose. It is mutual loathing of Trump, and nothing else, that unifies the committee’s seven Democrats and two Republicans (Cheney is joined by Adam Kinzinger of Illinois, also tapped by Speaker Nancy Pelosi because of his public chiding of Trump).

In fact, the two sides are not even in agreement on what that loathing portends. Democrats assess that Trump’s continuing political relevance is a boon for them. He provides a familiar bogeyman for their base to rally against at a time when a bungling Democratic administration and woke progressivism are increasingly unpopular. For Cheney, by contrast, Trump’s continuing relevance is a catastrophe. As she sees it, he is very unpopular nationally despite his devoted following, his deep flaws are corrupting the Republican Party, and his continuing hold on the GOP would enable Democrats to win elections they should lose. (I happen to agree with Cheney on these points. We should note, however, that they do not reflect the position of Republican House leadership, which stands unrepresented on this important congressional committee, and which vigorously objected to the highly irregular assignment of Cheney and Kinzinger to the committee by Democratic leadership, in lieu of Republican leadership’s chosen members, whom Pelosi rejected.)

It has long been my contention that the January 6 committee is conducting a de facto criminal investigation, which Congress has no constitutional warrant to do. The claim of a proper legislative purpose to develop laws that will prevent future Capitol riots or coup attempts is camouflage. In essence, the committee — which has interviewed hundreds of witnesses and gathered thousands of documents — is carrying out the impeachment investigation that the House failed to conduct before voting on a flawed “Incitement to Insurrection” impeachment article just days before Trump left office.

The apparent committee infighting bears out my argument. Axios reports that “nobody on the House select committee is more committed than [Cheney] to pursuing Trump for inciting the attack on the Capitol.” Yet Cheney and committee Democrats are at odds over legislative remedies. Consequently, the committee — beginning with this coming Thursday evening’s extraordinary prime-time hearing — is focused on “capturing Americans’ attention by unfurling the mountain of evidence connecting former President Trump and those close to him with the attack on the Capitol.” But because Cheney and her colleagues, led by Representative Jamie Raskin (D., Md.) “fundamentally disagree on what needs to be done to reform America’s election laws,” committee members have “deferred those decisions” until after the hearings are complete.

That is, the only thing that unifies this committee is the nonlegislative purpose of establishing Trump’s potential criminal culpability — which, as I’ve previously detailed, both Cheney and Kinzinger have described as a top priority. Yet, as for any overarching legislative purpose that might make a congressional investigation legitimate, there is not, never has been, and never will be a shared purpose, much less bipartisan agreement on proposals.

The Democrats have themselves to blame for this. If, beginning on January 7, 2021, they had commenced an investigation aimed at establishing that Trump had committed crimes and otherwise been derelict in carrying out his presidential duties, that would have been a proper invocation of the impeachment power. But at this late date, the January 6 committee’s objective is not to impeach Trump. Needing to pretend that their de facto criminal investigation has a true legislative purpose, Democrats are falling back on their failed progressive wish list.

Raskin is said to endorse abolition of the Electoral College; he’d have us instead hold a national popular election, repealing the Constitution’s voting system. He would also take yet another stab at the Democrats’ radical proposals to overhaul election laws — the For the People Act and the John Lewis Voting Rights Act.

These gambits have nothing to do with promoting the peaceful transfer of power. Democrats have been trying to dispense with the Electoral College for years, long before the political emergence of Trump (who, weirdly, agrees with them on the Electoral College’s obsolescence). While Democrats now claim that the Electoral College is an invitation to dark conspiracies, they want to eradicate it because it gives states primacy over presidential-election outcomes. Democrats dominate a few big, coastal cities, while their influence in states throughout the country continues to wane (Republicans control 30 state legislatures to the Dems’ 17, with three split; Trump won a majority of the states in both 2020 and 2016). And if anything, the Democrats’ Orwellian “voting rights” proposals, by undermining voting integrity, would make divisive fraud allegations a scandalous staple of future elections. Pelosi and Co. might as well cite Build Back Better and student-loan forgiveness as legislative purposes of the January 6 committee.

Another legislative purpose is said to be reform of the Electoral Count Act, on which Axios says Cheney has had some productive discussions with her Democratic colleagues, such as California’s Zoe Lofgren and Adam Schiff. This is another feint.

NR has editorialized in favor of modest ECA reform, for the purpose of making the obvious more explicit: The vice president does not have the authority to refuse to count state-certified electoral votes. Others among us (myself included) are more wary. To be sure, the ECA is not a model of clarity, but it has been clear enough for well over a century that the role of the vice president and Congress in tabulating state-certified electoral votes is merely ministerial. Any minimal benefit to be had from tightening up the ECA could be outweighed by the Democrats’ mischievous interest in ECA reform as a pretext for pushing their radical agenda to eliminate the Electoral College and undermine election integrity.

Here’s the point, though: No matter how one comes out on the merits of ECA reform, it is clear that Congress has already made great progress on ECA reform, as Yuval Levin described here some four months ago. There was no need to conduct a sprawling inquiry into Trump’s potential criminal liability for that. Like seemingly everybody else, January 6 committee members may be discussing ECA reform, but that does not make ECA reform a true legislative purpose of the committee’s investigation.

According to the Axios report, Stephanie Murphy of Florida, another committee Democrat, is pushing for “legislation to improve coordination among intelligence and security agencies,” as well as to “explore strengthening sentencing and punishment for seditious conspiracy and insurrection.” Again, these are pretexts, not legislative purposes.

A year ago, a pair of Senate committees released a thorough report on the security failures that contributed to the riot. As usual, the problems that occurred were more a function of officials’ failing to do their jobs properly than of a poorly conceived org chart. As for seditious conspiracy, there is no inadequacy in the 20-year penalty for that offense, which has been on the books since the Civil War and has been used against terrorists without any congressional fretting about sentencing. The Capitol riot has yielded only a handful of seditious-conspiracy charges out of the 800-odd cases the Justice Department has brought because the evidence is lacking that people broadly conspired to make war against the United States or use force against the government. And the DOJ hasn’t charged anyone with insurrection; while the term is popular in Democratic political messaging, the crime is hard to prove in a courtroom.

Finally on the legislative front, Axios further reports that Cheney has “discussed enhancing criminal penalties for ‘supreme dereliction of duty’ and other types of activities Trump engaged in, such as pressuring state officials.” I’d be surprised if this is accurate. (I’m not suggesting anything untoward; it just sounds like a jumbling of legal concepts.)

“Dereliction of duty” is a military-law concept; as president, Trump was a civilian. There is no civilian-law crime of dereliction of duty, so there are no relevant penalties to enhance. But if a public official is derelict, there are plenty of civilian crimes that might be charged, depending on the type of dereliction — there is no need to create new ones. On the other hand, impeachment inherently involves dereliction of duty; it is more analogous to military-law offenses than penal crimes because it is a political process triggered by betrayal of public trust. For impeachment purposes, it would be counterproductive to promulgate a heightened standard of “supreme dereliction of duty”; simple dereliction of duty already suffices to justify removal from office and disqualification from future office.

There is, moreover, no need to “enhance criminal penalties” for the types of behavior in which Trump engaged. The Constitution provides that a president may be impeached by Congress and separately prosecuted in court for any crimes. The conduct in which Trump engaged would be more than adequate to justify impeaching him, regardless of any criminal penalties; and the criminal penalties for the misconduct that Cheney is said to be focused on — obstructing congressional and state-election proceedings — are already severe. The question is whether there is sufficient evidence that Trump committed these crimes, not whether a sentence that fit the crimes could be imposed.

I believe the Axios story is wrong in one assertion that is really more a matter of opinion than news reporting. It says, “The committee’s legacy depends in large part on what reforms it pursues . . . to prevent another Jan. 6 from happening.” That erroneously assumes we are talking about a normal congressional committee whose investigation should be judged by what it hopes to accomplish legislatively. The January 6 committee is anything but normal, and with one party having been willfully excluded from participation, the committee cannot realistically be seen as a route to legislative reform, which requires bipartisan cooperation.

The committee’s legacy thus hinges on two other questions.

First, will its evidence against Trump, which will start rolling out at Thursday night’s hearing, be so gripping and significant that the public’s lack of interest in the Capitol riot will be reversed? Relatedly, will the committee’s exhibition convince the Justice Department that Trump should be indicted?

Second, if Republicans retake control of the House after the November midterms, will Democrats bear the consequences of their obliteration of congressional norms in forming and conducting the committee’s investigation? Democrats have refused to allow the minority to seat its chosen members. The committee has used subpoena power in the manner of prosecutors conducting a grand-jury investigation. The committee has issued subpoenas to members of the House, including House minority leadership — that is, the Democrat-dominated committee, after excluding Republican leadership’s chosen members, has used its subpoena power to target top Republicans. And the Democrat-dominated committee has used the prosecutorial power of the Democratic administration’s Justice Department in support of information demands by the committee; and it has done so in lieu of the modern congressional practice of litigating these demands in court.

So the question is: Will Democrats learn, as they learned when they blew up the filibuster in the context of judicial appointments, that what goes around comes around?

Whatever happens on those fronts, the committee’s legacy will not be remedial legislation. That has never been the purpose of the exercise. The purpose, as the Axios report otherwise confirms, is to nail Donald Trump for inciting the riot and obstructing the constitutionally mandatory session at which Congress and the vice president count state-certified electoral votes. That is the only mission on which there is agreement between Democrats and the two Republicans whom Democrats allowed to serve on the committee — and allowed because of their determination to abominate Trump, not their (nonexistent) enthusiasm for progressive policy priorities.