Protect our courts: Investigate Jan. 6

Speaker Nancy Pelosi (D-Calif.) will reportedly announce this week whether she will appoint a select committee to investigate the Jan. 6 assault on the U.S. Capitol, with some sources claiming she is already firmly committed to the idea. This is welcome news for those who care about the integrity of our democracy. It is also welcome news for those who care about the integrity of our judiciary.

One of the most profound responsibilities for any president is the selection and nomination of federal judges. This month the Senate confirmed President Biden’s first judicial nominees, starting a sprint to diversify the bench and counteract former President Trump’s successful efforts to reshape the judiciary though his appointment of 234 federal judges — appointments that flipped the ideological balance of several circuit courts, established the most conservative Supreme Court in modern history, and confirmed several nominees without a thorough review of their background or qualifications.

Who will our federal judges be five to 10 years down the road? Without a thorough investigation into what happened leading up to and on Jan. 6, a future president could nominate someone for a lifetime appointment on the federal bench who took part in the Jan. 6 assault or played a role in the delayed response to protect the Capitol without the Senate or the public knowing of their involvement.

Legal insiders from both parties are often rewarded with lifetime appointments: Chief Justice Roberts, Justices Elana Kagan and Brett Kavanaugh, among others, all served in the White House Counsel’s Office. Countless judges also served in the Department of Justice (DOJ) prior to their elevation to the bench, including its Office of Legal Counsel (OLC). Such experience can certainly be valuable for a judge. That said, it is imperative that a nominee be transparent about their responsibilities and actions while serving in government.

For instance, it was not until a year after Judge Jay Bybee was confirmed to the U.S. Court of Appeals for the Ninth Circuit that the public learned he had signed a legal memoranda sanctioning torture by the U.S. government during his tenure leading the OLC at the DOJ. While it was obviously well known that he had served in the OLC during the early years of the war on terror, Congress and the public would not learn of the existence of the Torture Memo and Bybee’s role in it until after his bipartisan confirmation.

As former Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) said, “If the Bush administration and Mr. Bybee had told the truth, he never would have been confirmed.” Judicial nominations require the advice and consent of the Senate, but the revelation came too late for that advice and consent to be meaningful.

That is why Pelosi’s commitment to investigating what happened on Jan. 6 is so important. The recently released Senate report detailing the security and intelligence failures that led to the assault is certainly a start, but it is a narrow report and simply not enough.

We need to know the names of all who fanned the flames of insurrection and breached the Capitol’s doors whether in public or behind the scenes. We need to know who inside the Trump administration was reportedly not only pressuring officials to investigate baseless conspiracy theories but demanding that the Supreme Court invalidate the election results. Because even if these individuals were not directly involved in the Jan. 6 assault and are not criminally liable, we need not reward them and degrade our democracy by giving them a lifetime appointment to the federal bench.

Similarly, this is one of the many reasons why the DOJ Inspector General’s announced investigation into the department’s previous subpoenas of democratic lawmakers’ communications records is so important. We need to know who was involved in issuing those subpoenas and using DOJ’s law enforcement authorities for political purposes. If those involved are nominated to the federal bench by a future administration, senators — and the public — have a right to know the unvarnished truth before, not after, they are given a lifetime appointment.

There are plenty of people who should be criminally prosecuted or professionally reprimanded for conduct related to Jan. 6. From the lawyers who filed conspiracy-laden complaints trying to overturn an election to the actual rioters who breached the Capitol complex and arguably committed felony murder, prosecutions should happen. But for those who didn’t commit a crime, we still need to know who they are so they are not unduly rewarded for undermining our democracy. 

Debra Perlin is a Director of Policy and Program at the American Constitution Society.