Reports that former White House aide Steve Bannon is being charged with criminal contempt for refusing to comply with the House January 6th select committee’s subpoena based on the invocation of Executive Privilege and that former President Trump has filed a lawsuit challenging the committee’s actions raise complicated separation of powers issues and tension among our branches of government. But Americans deserve to know the answer to much more fundamental questions – whether the House January 6th committee “investigation” is a process that comports with basic principles of fundamental fairness and due process guaranteed by our Constitution, whether it truly is designed to “investigate” the events at issue, and whether any conclusion can be viewed as legitimate, given the decision to select a committee of vocal partisans with the same political agenda.
When House Speaker Nancy Pelosi announced with “great solemnity and sadness” that she would be forming a committee in the House to investigate the events at the Capitol on January 6, 2021, she told us it was necessary because “it is imperative that we seek the truth of what happened.” It became unmistakably clear from her words immediately afterwards and from the composition of the committee she selected, that this was never intended to be the committee’s agenda. Rather, the “truth” Pelosi had in mind is a committee conclusion that supports her political agenda, rather than the product of an actual “investigation.” And to guarantee the committee’s conclusion, she ensured that it would be packed with House members who share her political agenda and who had publicly announced their conclusions before being appointed.
Just days after January 6th, Pelosi went on 60 Minutes and announced her conclusion that the events of January 6th were all caused by President Trump, who she referred to as “deranged” and “unhinged.” She said, “This president is guilty of inciting insurrection. He has to pay a price for that.” That was six months before a committee was assigned to conduct its “investigation.”
An “investigation” by definition, should be a quest to find the truth, conducted by fair, non-partisan, objective, skilled, open-minded truth-seekers. In a matter as historically important as the “root causes” of the events of January 6, 2021, the American people deserve nothing less. Constitutional due process demands nothing less.
Pelosi’s political agenda for this committee soon became even clearer from her admittedly “unprecedented” decision to violate the House’s long-standing institutional protocol by refusing to seat members of the investigative committee selected by the Republican leader in the House. Pelosi rejected spots on the committee for Rep. Jim Jordan of Ohio, the top Republican on the House Judiciary Committee and Rep. Jim Banks of Indiana, a man whose lifetime of public service, includes interrupting his career just a few years ago to voluntary deploy to Afghanistan to serve his country and who continues his service as a U.S. Naval reserve officer. Could their rejection possibly be linked to their demands that the investigation examine what Pelosi knew in advance about the potential for violence at the Capitol on January 6th, what, if anything, she could have done about it and what she actually did or did not do.
In rejecting these two Republican members of Congress from serving on the committee, Speaker Pelosi publicly claimed that her decision was based on the need to ensure “respect for the integrity of the investigation, with an insistence on the truth and with concern about statements made and actions taken by these members.” Her sheer, unadulterated hypocrisy is an affront to the American people. Indeed, it is exactly the composition of the committee that she selected and the bias and publicly announced pre-judgment of the facts that strips this committee of any semblance of integrity and renders it a living breathing denial of fundamental, constitutionally guaranteed due process.
Speaker Pelosi named as the committee’s chair, Rep. Bennie Thompson of Mississippi. Congressman Thompson was the lead plaintiff in a lawsuit pending in federal court that is based entirely on his claim that the events of January 6, 2021 were directly caused by former President Donald Trump, that the events were the product of conspiratorial machinations of what he believes to be white supremacist groups, and that he personally suffered damages from the actions perpetrated by these defendants who he claims intentionally violated his civil rights on January 6th. Rep. Thompson has a deeply personal stake in ensuring that this “investigative” committee comes to a conclusion consistent with the claims he made in court.
Rep. Thompson finally withdrew as a plaintiff from the lawsuit; but that certainly does not mean that his assertions to the court assigned to the case, made just weeks earlier can or should be ignored in evaluating his intended role as a neutral and detached investigator and arbiter of the facts surrounding January 6th. These are the allegations he made to a federal court, do they portray him as an open-minded, objective, nonpartisan truth-seeking investigator with respect to the facts and “root causes” of the events of January 6, 2021:
“January 6th was one of the most shameful days in our country’s history, and it was instigated by the President himself. His gleeful support of violent white supremacists led to a breach of the Capitol that put my life, and that of my colleagues, in grave danger. It is by the slimmest of luck that the outcome was not deadlier. While the majority of Republicans in the Senate abdicated their responsibility to hold the President accountable, we must hold him accountable for the insurrection that he so blatantly planned. Failure to do so will only invite this type of authoritarianism for the anti-democratic forces on the far right that are so intent on destroying our country.”
Just this week, Chairman Thompson and other committee members made public comments in connection with the Bannon contempt resolution, expressing their already drawn conclusions about Bannon’s role and former President Trump’s role in the January 6th events, and rendering their “investigation” nothing more than window dressing to support their political agenda and the subpoena process more a scam designed to find additional political fodder than any real search for the truth concerning January 6th.
Was it Speaker Pelosi’s sense of fairness, desire to seek the truth, and insistence on the complete appearance of integrity for this committee, that led her to appoint to the committee Rep. Adam Schiff who, according to the Wall Street Journal (and many others) “lied repeatedly about the evidence concerning the Trump campaign’s collusion with Russia?”
Pelosi named Rep. Jamie Raskin to serve on this investigative committee. Raskin, of course, served as the lead partisan prosecutor in the second impeachment trial against former President Trump and in that role declared repeatedly that President Trump was fully responsible for the events of January 6th and that the law required his conviction on the charges alleging the same.
Perhaps the most cynically absurd selection by Speaker Pelosi was Republican Rep. Liz Cheney. Rep. Cheney’s recent public fame centers entirely around her repeated claims that the “root causes” of the events of January 6th, are directly and unequivocally attributable to former President Trump. For Rep. Cheney and others on this committee, it is hard to see what there is to investigate, given their repeated unequivocal conclusions on the subject.
One would have hoped that one lesson learned from the travesty that was the Mueller “investigation” would have been that any true investigation of an important matter of public interest is devoid, ab initio, of any semblance of integrity when the investigators are, in advance of the investigation, on record with their conclusions about the subject of the investigation or are inextricably conflicted by other interests that render their objectivity impossible.
To the extent gaining the confidence of the American people for its findings and presenting itself as a body for which integrity and the appearance of integrity are of even minimal importance, the House committee selected by Speaker Pelosi to investigate the events of January 6, 2021 is irretrievably disqualified from any such standing, almost as if by design. America deserves much better.
A committee born irresponsibly of raw partisan politics cannot be entrusted to investigate this matter of historic significance to our country and no responsible representative of the American people should give her or his imprimatur to it by participating or in any way endorsing it. That would be consistent with the view espoused by great liberal philosophers like Rawls and Habermas who saw the refusal to condone illegitimate government conduct as actually enhancing democratic integrity.
David Schoen is a civil rights and criminal defense lawyer in Alabama for over 36 years, and lead counsel for former President Trump at his second impeachment proceeding.
