It has been nine months since the riot at the Capitol aimed at blocking the finalization of Joe Biden’s ascent to the presidency. The committee established by House Democrats to investigate its origins probably has 15 months in which to finish its work — work that has barely started.
Those, however, were not congressional probes. Nor was the 9/11 Commission, which ran from November 2002 to August 2004. If the House select committee investigating the Jan. 6 attack ran for an equivalent period, it would end in late March 2023. But the Jan. 6 committee is unlikely to finish at that point for two reasons: willful efforts to slow its work by the witnesses it hopes to interview and the likely prospect that Republicans could retake the House in January 2023.
You’ll recall that an effort to establish a bipartisan commission was spiked by Republicans earlier this year. The result was the current committee, established by a largely party-line vote. It is bipartisan in the sense that two Republicans are part of the panel, but there’s no real question that a Republican House majority would be uninterested in continuing its work. In a poll conducted by the Pew Research Center last month, most Republicans indicated that they felt too much attention has been paid to the attack, an attack that party leadership is eager to move to the rearview mirror.
That’s why Rep. Liz Cheney (R-Wyo.) was ousted from her senior position with the House Republican caucus, after all: because she was insistent that the events of the day — and former president Donald Trump’s role in them — be evaluated.
So unless the narrow Democratic majority in the House survives the midterms, the committee is probably doomed.
“If the GOP takes the House, they can shut down the investigation immediately,” Georgetown Law professor Josh Chafetz explained in an email. “That’s one drawback of doing this by simple (i.e., single-house) resolution: It is completely at the discretion of the House majority.”
If Democrats do lose control of the House in the 2022 midterms, the committee could try to wrap things up in the short period before the new Congress takes office, as Duke University associate dean Lisa Kern Griffin explained.
“The Committee could take some steps in the lame duck Congress to preserve and publish its work,” Griffin wrote, “but there is real urgency to complete the investigation in 2022. Chairman [Bennie G.] Thompson has indicated that the Committee will move quickly, but it is up against the election clock, and that is part of the motivation for witnesses to slow-walk their testimony.”
We’ve seen this before. When Congress was investigating Trump for various things during his presidency, he and his allies threw up every possible roadblock, aiming to impede the Democrats’ work until the 2020 election or until 2021, when issued subpoenas would expire. In theory, elected officials work in good faith to respect the legislative branch’s oversight powers. But Trump was not an adherent to such theories, as he repeatedly made clear. He instead framed the investigations as political and paid no price (beyond his first impeachment) for simply refusing to aid the oversight effort in any way.
Hence Griffin’s point: Dragging feet means not getting anywhere.
When former Trump adviser Stephen K. Bannon failed to appear before the committee in response to a subpoena, Rep. Thompson (D-Miss.), announced that the committee would take a vote to hold him in contempt ... in a few days. (As attorney Luppe Luppen put it on Twitter, mocking the delay: “Almost happened this week! Near miss.”) But this means that a witness involved in conversations with Trump before Jan. 6 and in the response to the election will not be heard anytime soon. Finding someone in contempt could result in a potential witness being jailed (something Bannon would likely relish for its attention-granting effects) but will certainly result in a slow legal fight over whether the person has to offer testimony at all.
Griffin explained what would be likely to follow if the committee asked Attorney General Merrick Garland to prosecute Bannon for contempt.
“Assuming that the Justice Department decides to pursue prosecution, there would almost certainly be a trial, which will cause further delay,” she wrote. “Criminal contempt prosecutions under these circumstances are rare and time-consuming, potentially taking years.”
How quickly things move through the courts depends on how quickly the court system decides to act. On that point, Chafetz was skeptical.
“If recent experience is any guide,” he wrote, “I wouldn’t expect the judges to feel much urgency here.”
The committee will certainly be able to interview willing witnesses and gather documents and information through subpoenas. Many potential witnesses who are wary of offering testimony may not be able to engage in long, expensive legal fights. But all of these things take time that the committee doesn’t have.
When Congress formed the 9/11 Commission, the most significant impediments it faced came from intelligence agencies. The Jan. 6 committee faces active and hostile opposition from most of one of the United States’ two major political parties. It faces a barrage of public opposition from a former president and constant efforts from potential witnesses to prevent it from uncovering what occurred in the weeks before the riot. But most of all, it faces a likely termination date of on or around Jan. 3, 2023.
To the extent that Trump and his allies can waste time until then, they will.
