A better way to investigate the Jan. 6 Capitol attack

Now that the Senate has voted to acquit former President Donald Trump despite overwhelming evidence that he fomented the Jan.6 attack on the U.S. Capitol, many people may feel he escaped accountability for his actions. And Trump does face a mountain of legal trouble not related to the Capitol attack. But larger questions remain about the ability of our institutions to withstand future assaults on democracy. Some lawmakers in Congress have started to call for a commission like the one created in the wake of the 9/11 attacks, with a particular focus on security breaches at the Capitol. 

House Speaker Nancy Pelosi (D-Calif.) this week announced that Congress would create a “9/11-style” commission to assess the specific problems with security on Capitol Hill. But a broader investigation would be more beneficial, one that could get at some of the deeper causes and sources of the attack. Indeed, a more recent example of this sort of inquiry is readily at hand. 

In the wake of the 2008 financial crisis, Congress created the bipartisan Financial Crisis Inquiry Commission, which investigated the root causes of the crisis and offered meaningful ideas for reform. Any inquiry into the events of Jan. 6 might follow the example of that effort.  

Indeed, that commission conducted a wide-ranging investigation and unearthed critical information about the sources of the 2008 Great Recession and ways to prevent such crises from occurring in the future. It noted that the root causes of the financial crisis included decades of deregulation, financial institution mismanagement, excessive risk-taking and over-leverage. Importantly, it even included a minority report from those who did not agree with the Commission’s conclusions.

Such a commission today, focused on the 2020 election and its aftermath, with an investigatory staff and subpoena power, could examine not just the specific events that transpired on Jan. 6, but also what led to them and the steps necessary to prevent them from occurring again. 

It could identify any co-conspirators from outside and inside the government. It could also take on and dispel the unfounded charges of electoral fraud and explore how to make voting more accessible, offer direction to states on how to harmonize voting and vote-counting procedures and harden the machinery of democracy from future threats. It could even assess the role that social media played in the lead-up to the siege.

One of the most tension-filled moments of Trump’s Senate impeachment trial centered on whether the impeachment managers would call witnesses. The decision to move forward without witnesses left many disappointed that there would not be a full and fair hearing regarding the insurrection. A commission with access to records, social media posts and other communications could also call witnesses, lots of witnesses, from Capitol police and staff, to those who allege that there was voter fraud. It would demand that anyone who testified or otherwise gave evidence to the commission to do so under oath, and to bring receipts and evidence to support their claims. A full investigation, with witnesses, might permit the nation to gain some sense of the complete truth and achieve some sense of national closure that would allow us to move forward, with a stronger and healthier democracy.

With respect to claims of voter fraud, at least, this is what Republicans in Congress claimed they wanted when they opposed the certification of the results of the election. They also assert there is anti-conservative bias in social media. All of this should be fair game for such a commission.

The Biden administration and Democrats in Congress should not fear such a commission or this scope of inquiry. Any time the claims of fraud have been exposed to sunlight, they have withered. Rooting out the “Big Lie” that the election was stolen is one of the best ways to achieve some degree of closure to the 2020 election and its aftermath.

One of the reasons that the Senate trial moved so quickly and without witnesses is that many Democrats wanted to move on to confirming President Biden’s nominees and addressing the pandemic. To satisfy these concerns, the commission, like the financial crisis team, would be made up of former lawmakers of both parties, and could include law enforcement officials and skilled trial attorneys. With such personnel in the fold, the commission could conduct a full and effective investigation while not distracting sitting elected officials from the most immediate tasks at hand: ending the pandemic and rebuilding our economy.  

The crisis of democracy is important enough that it cannot go unaddressed. with respect to the crisis it was asked to examine, the Financial Crisis Inquiry Commission concluded that, “The greatest tragedy would be to accept the refrain that no one could have seen this coming and thus nothing could have been done. If we accept this notion, it will happen again.” 

The Jan. 6 crisis, which struck at the heart of our democracy, must be addressed, not just because we need to understand how it happened but also to learn how to prevent it from happening again. A full and thorough exploration of the actions that led to that day, the people who made it happen and the steps necessary to prevent it from occurring again will ensure that these issues receive the attention they deserve. The future of our democracy may well depend on it.

Ray Brescia is a professor of law at Albany Law School and the author of “The Future of Change: How Technology Shapes Social Revolutions.”