Face any consequences?

9 questions about the January 6 committee, answered

What is the point of the January 6 committee? Will Trump face any consequences based on what it finds?

By Ben Jacobs 

The House January 6 committee’s primetime hearing Thursday will represent the culmination of the series of eight hearings that stretched across the better part of the summer. Rep. Jamie Raskin (D-MD) said last week that this week’s hearing would “be a profound moment of reckoning for America.”

It may not reach quite that level — it’s still just a congressional hearing — but it is expected to shed new light on former President Donald Trump’s actions on January 6, 2021, while the mob attacked the Capitol.

Although the committee has been getting ample coverage on cable news since the public hearings began in early June, this is likely to be the most watched and talked about of its hearings.

Here are answers to some of the biggest questions about the January 6 committee, so you can make sense of what is revealed Thursday and what all this is actually leading to.

1) What is the point of the January 6 committee?

Although the events of January 6 were amply covered at the time and have since been the topic of books, documentaries, and a presidential impeachment trial, there have been countless questions about the attack on the US Capitol left unanswered. Was it planned or organized in any way? And, if so, by whom? What was Donald Trump doing while his supporters ransacked the Capitol? And how did it fit into Trump’s months-long effort to overturn the 2020 presidential election and keep himself in office? These questions were left lingering even after Trump was impeached for inciting the attack, and have never fully been answered.

The January 6 committee was created by Congress to investigate the circumstances around the attack on the Capitol, to recommend “changes in law, policy, procedures, rules, or regulations” to prevent future acts of violence, and “to strengthen the security and resilience of the United States and American democratic institutions.” It was created with a near party-line vote in June 2021, with only the two Republicans who ended up on the committee, Reps. Liz Cheney (R-WY) and Adam Kinzinger (R-IL), voting for it.

The final work product of the committee is not the televised hearings, or punishing anyone for wrongdoing it uncovers, but instead a formal report to Congress. That’s expected to be issued in the fall; it is anticipated to explain how the attack on the Capitol happened and outline future steps to prevent similar occurrences in the future.

2) So what has it been doing so far?

With its broad mandate, the committee has interviewed over 1,000 witnesses and focused intensively on the actions of Donald Trump in the weeks and months before the pro-Trump mob stormed the Capitol on January 6.

The committee worked for months before it started making its case to the public, though much of what it found out behind closed doors was revealed in press reports. Those leaks of committee findings included reports about a draft executive order prepared for Trump to have the military seize voting machines, text messages sent by former White House chief of staff Mark Meadows urging members of Congress to act to overturn the election, and correspondence between Trump adviser John Eastman and Ginni Thomas, the wife of Supreme Court Justice Clarence Thomas.

Since June, the committee has held seven public hearings geared at assembling a cohesive, comprehensive story of the organized, multi-pronged effort to overturn the result of the 2020 presidential election, with Trump at its center. So far, the hearings have focused on aspects of that plan, like:

• Attempts by Trump to pressure Republican state officials to try to reverse Joe Biden’s wins in several swing states.
• The effort to push Vice President Mike Pence into unilaterally and unconstitutionally throwing out electoral votes in his role presiding over the formal certification of the 2020 election.
• The effort to force Justice Department officials to take legal actions seeking a different election result in court.
• What happened when all of those failed, and Trump then focused on his rally on January 6 to try to bring his supporters to Washington, DC, in a last-ditch effort to hold on to power.

Unlike other congressional hearings that feature lengthy opening statements and ample speechifying, these have run more like scripted television programs. The committee has even used a former television news executive as a consultant, and that shows in the polished production: It weaves together clips of videotaped depositions and occasionally alternates those with live questioning of the witnesses before the committee.

3) Could the committee’s work result in actual consequences for Trump or anyone else?

Yes, it could.

The committee doesn’t have the authority to punish anyone. Much has been made about whether it might issue criminal referrals to ask the Justice Department to indict Trump or others involved in efforts to overturn the election. These, however, don’t carry any real legal weight. One could tag Attorney General Merrick Garland on a tweet asking him to indict Trump and it would have much the same independent effect.

But the resources the committee has put toward investigating January 6 have produced evidence that could eventually be shared with the Justice Department to buttress its investigation.

Perhaps the most meaningful legal impact of the committee’s investigation so far came in a 44-page ruling from David Carter, a federal judge in California. In the ruling, Carter held that documents the committee subpoenaed from John Eastman, an outside Trump lawyer, were not protected by attorney-client privilege. This was because, he wrote, Eastman and Trump were acting as criminal co-conspirators trying to mount “a coup in search of a legal theory.” In stark language, Carter wrote, “the Court finds it more likely than not that President Trump corruptly attempted to obstruct the Joint Session of Congress on January 6, 2021” and “that President Trump and Dr. Eastman dishonestly conspired to obstruct the Joint Session of Congress on January 6, 2021.”

This doesn’t mean Trump will get prosecuted. After all, the decision whether to charge Trump, Eastman, or anyone else with a crime doesn’t rest with a federal judge but with prosecutors. But it does come freighted with significance that a nonpartisan actor issued a formal legal ruling saying it is more likely than not that a sitting president committed a crime.

4) What does this have to do with the Justice Department investigation?

You could view the committee’s investigation of January 6 and the DOJ’s investigations as two trains running on parallel tracks, investigating the same thing in different ways. The committee has moved from closed-door interviews to televised hearings while the Justice Department has been steadily prosecuting those who entered the Capitol grounds on January 6. As of early July, 855 people had been arrested across the country. About 330 have pleaded guilty to various charges, while 10 have gone to trial and been found guilty.

Recently, however, the DOJ has stepped up its efforts, raiding and seizing electronic devices of figures like Eastman as well as of those who were involved in schemes around the electoral vote-counting process. It is unclear exactly what connection this new push by the DOJ has to the committee’s work.

Eventually, the two tracks will converge once the committee issues its report and turns over its investigative material to the Department of Justice. The question then is simply what Garland will do with the evidence the committee has gathered as well as that gathered by his own prosecutors.

The final decision to prosecute Trump and his associates will fall into Garland’s lap. The attorney general will have to weigh not only the strength of evidence and the likelihood that a jury would convict, but also whether to set the precedent of indicting a former president, which would be a first in American history.

5) Who are the participants I need to know about?

The two bold-faced names running the committee are its chair Rep. Bennie Thompson (D-MS) and its vice chair, Liz Cheney. These are the only two members of the committee who speak at every hearing. Cheney has often played an active role in hearings; her opening and closing statements provide a road map for what the committee intends to do and hints of new revelations to come.

The other person who has come to national prominence through the hearings is Cassidy Hutchinson, a now-26-year-old former White House aide. The committee devoted a hearing in late June solely to Hutchinson, a previously obscure figure, which featured testimony about Trump’s desire to go to the Capitol on January 6 and about members of Congress who allegedly sought presidential pardons for their own efforts to overturn the 2020 election.

So far, Hutchinson has been the only White House aide to testify in person before the committee and willingly provide revelatory testimony. There have been plenty of other Trump White House aides who have appeared via their videotaped depositions and made memorable contributions, including White House lawyer Eric Herschmann and former Attorney General Bill Barr. Most recently, White House counsel Pat Cipollone finally testified before the committee, and clips of his deposition are expected to feature prominently during Thursday’s hearing. Others in Trump’s orbit have appeared in person for hearings, including former acting Attorney General Jeffrey Rosen and Greg Jacob, the counsel for Vice President Mike Pence.

6) And what’s going on with people like Steve Bannon who weren’t cooperating?

While many big names in Trumpworld have cooperated and the committee has played clips of depositions from top Trump allies including his daughter Ivanka Trump, his son-in-law Jared Kushner, and his former campaign manager Bill Stepien, several well-known figures in Trump’s orbit have refused to do so.

The most well-known is Steve Bannon, the former top White House strategist who has since been an outside adviser to Trump. Bannon initially refused to cooperate with the committee at all. It then cited him for contempt of Congress, and the House voted to recommend that the Justice Department prosecute him for his refusal to cooperate. Bannon turned himself in last November, and, after months of legal wrangling, his trial is set to begin on Monday. The former Trump adviser captured attention in the past week with a last-minute offer to testify before the committee that was dismissed by the Justice Department as “not a genuine effort to meet his obligations but a last-ditch attempt to avoid accountability.”

The committee has referred three others for contempt of Congress after votes in the House. The Department of Justice declined to move forward with prosecutions of former White House chief of staff Mark Meadows and Trump adviser Dan Scavino but has charged Trump trade adviser Peter Navarro with contempt.

Others appeared before the committee but repeatedly invoked their constitutional right against self-incrimination, including former national security adviser Mike Flynn and former DOJ official Jeffrey Clark.

7) Is this breaking through or having a political impact?

The committee is piling up plenty of evidence that Trump knew he lost the 2020 election and then actively conspired to overturn it. Of course, there have been plenty of instances of his misdeeds in the past — dozens of scandals, two impeachments, and an almost infinite number of problematic tweets — yet he’s weathered those and managed to stay the leader of the Republican Party. It’s hard to imagine that anything will ever shatter Trump’s grip over his MAGA base, and this probably won’t do it.

But there is some evidence that the hearings are eroding his general standing within the GOP; reaching some Republicans who were never part of the MAGA wing of the party and reminding them of their horror over the attack on the Capitol.

According to a late June poll from CBS/YouGov, a quarter of Trump voters say they are paying some or a lot of attention to the hearings, while over 40 percent of Trump voters think it is very important or somewhat important to find out what happened that day. Further, Trump’s unfavorability has steadily increased in polling over the past month, while the former president has started to slip under 50 percent in polls for the 2024 Republican nomination.

This is happening while Trump is sounding like a presidential candidate in all but name. Just last week, in an interview with New York magazine’s Olivia Nuzzi, he implied the only open question is whether he would announce his candidacy before or after the November midterms. While Trump still has a strong core of support within the GOP in a potential primary, he has already lost one presidential election to Biden, and lagged the incumbent in a recent New York Times/Siena College poll even though only a third of voters in the same poll approved of Biden’s performance in office. Anything that further dings Trump’s support — even outside the base — is a political liability.

8) Is this like anything that has happened before?

While the January 6 committee has often been compared to Watergate, it has very little in common with the carefully crafted Senate committee that investigated the Watergate break-in, led by conservative Democrat Sam Ervin in 1973, an era when politics was more genteel and most Americans received their news through traditional media outlets.

The most unusual aspect of the committee is its non-adversarial nature. After a fight over Republican nominees to the committee led House Minority Leader Kevin McCarthy to refuse to participate, it left the committee without any Trump defenders.

Cheney and Kinzinger, the two Republicans on the committee, both voted to impeach Trump, and that has led to the members working together in a nonpartisan way. The resulting unity of purpose has enabled the hearings to become slick televised productions without any objections, obstruction, or grandstanding. While the decision to refuse to participate was initially made in an effort to delegitimize the committee and make it look like a partisan vehicle after House Speaker Nancy Pelosi blocked two of McCarthy’s original nominees from joining the committee, Republicans have since been left regretting the decision. Even Trump has criticized it after the hearings began when he was left without any allies in the room.

The question is what outcomes will result from the committee. The Watergate scandal led to the passage of comprehensive campaign finance laws for the first time in American history (although much of the regime was promptly ruled unconstitutional by the Supreme Court and has been steadily eroded by court decisions since then). While reform of the Electoral Count Act, the arcane 19th-century law that governs the certification of presidential elections, has had bipartisan support in the aftermath of the attack on the Capitol, it’s unlikely that there will be more significant legislative proposals. There may still be prosecutions of those involved in the effort to overturn the election, but the question is whether it will reach the scale of Watergate, which led to nearly 50 guilty verdicts.

There also is the specter of Trump or another MAGA candidate winning the White House in 2024 and potentially pardoning anyone prosecuted (including the hundreds already found guilty of breaching the Capitol). Trump has already expressed at rallies his willingness to do this. There is precedent for this — most of the top government officials wrapped up in the Iran-Contra scandal were pardoned by George H.W. Bush before he left office in 1993.

9) What happens next?

After the primetime hearing on Thursday, there are no immediate plans for more hearings, though the committee left open the possibility there could be more scheduled if they are warranted. Instead, the committee will continue its investigative process and start to focus more on drafting and writing its report, which is expected to be complete in the early fall. At that point, it will make public whatever recommendations it has and perhaps hold another hearing to present them.

The hard deadline for action, though, is the midterms. Not only are Democrats expected to lose control of the House, but two of the committee’s members, Kinzinger and Rep. Stephanie Murphy (D-FL), are not running for reelection, while two others face tough races. Cheney is the underdog in her August primary while Rep. Elaine Luria (D-VA) represents a swing district. The result is that the committee has to accomplish all of its goals by the end of the year.

With Democrats likely to lose the House and Republicans already pledging retribution over the committee’s work, it’s unlikely that anything proposed by the committee would stand a chance of passing the House in 2023.

As for Trump and his allies, the Department of Justice eventually has to decide whether to take the unprecedented step of indicting a former president. And if it doesn’t do so soon, the decision may be about indicting not just a former president but a current presidential candidate as well.