Jurisprudence

Nancy Pelosi Is Right

There’s only one way to uncover the full truth about Jan. 6.

A Trump supporter lunges at police officers in riot gear as others scale the Capitol walls.
Trump supporters clash with police and security forces at the Capitol on Jan. 6. Brent Stirton/Getty Images

Donald J. Trump was acquitted over the weekend for inciting the Jan. 6 insurrection at the Capitol in the shortest impeachment trial of a president in U.S. history. Even Trump’s own lawyers commented on the lack of evidence collected during the short-lived trial. Congress, though, has a chance to rectify that situation. Like 9/11 before them, these terrorist acts—and the institutional failures leading up to them—demand investigation and accountability that is only possible through an independent commission.

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Following Trump’s acquittal, Speaker of the House Nancy Pelosi once again endorsed the creation of an independent commission to investigate the events of Jan. 6. Only such an independent commission—with a broad mandate and resources behind it—can determine what led to the attack, how it was executed, and what failures within government allowed it to succeed as much as it did.

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Journalists and prosecutors are doing important work, but they are structurally incapable of telling the full story—as were the House impeachment managers during a trial that was circumscribed by the political realities of Republican defenses of Trump and a new presidential administration eager to move on with its urgent agenda. A congressional commission could have the power to subpoena records from public as well as private actors, and it could have a mandate to investigate all aspects of the events of Jan. 6. And it could complete these tasks without distracting Congress from the important work of governing the country. The 9/11 Commission is a model because of its independence, its formal legal authorities (such as subpoena power), and its success in obtaining cooperation from the executive branch even without issuing subpoenas. It also is a model because it was able to share the results of its investigation with the government and the public. The 9/11 Commission helped expose what led to 9/11 and what could have been done to stop it.

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A lot of what we have learned about the Capitol insurrection so far has been uncovered by the media. We owe a debt of gratitude to the reporters who have shed light on this event and the lead-up to it. But without the power to compel testimony, seize records, and punish lies, investigation can only get so far.

Limited new evidence came out during the impeachment trial. The video and oral presentations were gripping, and they clearly showed the seriousness of the events and the role of the former president, but they relied heavily on public media reports. The impeachment proceedings also established how much is left to learn—a lot.

Individual prosecutions of people involved in the events of Jan. 6 have been moving forward, meanwhile. Over the last few weeks, information has been trickling out through indictments, bail hearings, and other court proceedings.

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Perhaps these prosecutions will tell the rest of the story? In a word, no. Prosecutors deserve credit for what they are doing, but prosecutors are not well positioned to tell us the full story for two interrelated reasons.

First, prosecutors prosecute. Criminal prosecutions are highly individuated. Yet the story of the attack on the Capitol is more than just a story of individuals. The broader story is of little interest to a prosecutor trying to win a case against an individual defendant. As I watched prosecutors reveal ugly details about individual perpetrators, I reminded myself that although prosecutors have a constitutional obligation to share with defendants any exculpatory evidence, they don’t have an obligation to present that information in court—and they certainly don’t have an obligation in any individual case to point their finger at other potential wrongdoers not on trial. These prosecutorial incentives mean that we cannot simply add up the individual prosecutions into a coherent whole.

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Second, prosecutors work hand in glove with law enforcement, so it should be unsurprising that many prosecutors are loath to turn their ire toward law enforcement—a problem when so much of the story yet to be told involves uncovering what can only be described as a failure of law enforcement.

We as a country need to know the full story of Jan. 6 because this was an event of national importance, because it implicates decision-makers at the highest levels, and because it may portend an era of political violence with which we must reckon.

A congressional commission can investigate what happened among the perpetrators—not just who is legally responsible but also who is morally and practically responsible. This includes investigating the role of domestic extremist groups, social media applications, members of law enforcement, and political leaders. This knowledge may inform legislative and executive action on domestic terrorism, white nationalism, and regulation of communication technologies.

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A congressional commission also can investigate what happened among those who were supposed to serve and protect—not just which decisions should have been different but also which institutional structures should be different. This includes investigating the decisions made about the National Guard, the Capitol Police, and the initial permitting. This knowledge may inform legislative and executive action on the structure of law enforcement, civil-military relations., and D.C. statehood.

And, perhaps most importantly, a congressional commission can do all of this at once—telling the full story not in disjointed and incomplete bits, but as a single narrative. Unlike prosecutors and impeachment managers, a commission is not making the case against any particular person, but against any and all who bear responsibility. Given the reactions following the impeachment trial from both sides of the aisle, there seems to be at least some bipartisan appetite for truth, at least on this issue.

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The possible bipartisan interests also could guide the design of the commission. The 9/11 Commission was consciously bipartisan. Not only did it have equal numbers of members appointed by Republicans and Democrats, but important decisions—such as issuing subpoenas—only could be authorized by majority vote, requiring some bipartisan support. Indeed, even before invoking its subpoena power, the 9/11 Commission achieved substantial cooperation from the executive branch. Bipartisanship is not a necessary feature of an independent commission, but if it is available, it is worth doing.

Jan. 6 was the product of individual choices and social forces and institutional failures. To come to grips with what happened and to work to stop it from ever happening again, a full accounting must be completed. Congress must appoint an independent commission with the mandate of truth-seeking, even though the truth will surely hurt.

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