Have the proceedings of the House of Representatives’ Select Committee on January 6 altered our understanding of the Capitol riot? In a big-picture sense, no.
This is not to belittle the committee’s mission. It is appropriate, perhaps even essential, to have a comprehensive congressional accounting of a violent attack on the seat of government, on the Congress itself. That is particularly the case where, as here, evidence exists of presidential culpability. The events culminating in the January 6, 2021, uprising fall into a different category from, for example, the Capitol’s wartime torching by British troops in 1814, or from such terrorist acts as the shooting and wounding of five congressmen on the House floor by Puerto Rican separatists in 1954, or the bombing of the Capitol by Weatherman antiwar radicals in 1971.
To say that the committee proceedings have not changed the overarching picture is, instead, to make two points.
First, that picture was already well developed. A stunned nation viewed the riot live on television and in streaming online images, just after then–president Donald J. Trump gave a shockingly incendiary speech. A week later, Trump was impeached by the House for the second time. While it may have seemed like Trump normalized impeachment (while taking a sledgehammer to every other presidential norm), the process remains historically extraordinary. As the nation watched, the Senate sidelined all other business to try Trump, even though he’d been out of office by then for nearly a month. A solid majority of senators (57–43) even voted to convict him, though this margin fell short of the two-thirds super-majority necessary to trigger disqualification from future office. That goes far in explaining why the January 6 committee is in business 18 months later, doing the work that a rushed, slipshod impeachment effort failed to do.
Second, I use the word “proceedings” advisedly in describing the January 6 committee. The panel is not conducting hearings. In our system, hearings are adversarial, whether in congressional inquiries or in court. Even the most loathsome defendants are vested with due process rights to cross-examine witnesses, present whatever defense they have, and poke holes in the prosecution’s case. The January 6 committee, in stark contrast, is part inquisition and part theatrical production. The latter is embarrassingly manifest thanks to the panel’s highly unusual primetime opening session, a made-for-TV spectacle in which the committee retained a former top network executive to orchestrate a slick production by splicing carefully mined bits of deposition video into a tightly scripted narrative presentation.
The committee is quick to point out that it is in the investigative stage. Its preferred parallel is to prosecutors—not proving a case at trial but presenting it to a grand jury. It is the phase at which the state has no duty to present the suspect’s side of the story because it is merely establishing that it has a triable case.
But this is a tortured analogy. Real grand jury investigations proceed in secret. Constitutionally speaking, they are conceived as a protection of the suspect, requiring the prosecutors to show probable cause of crimes to the satisfaction of the community before making a formal public allegation—at which point our law arms the accused with full rights of counsel, confrontation of witnesses, subpoena power, presentation of a defense, and so on. The January 6 committee, to the contrary, is unabashedly designed to prejudice the suspect (Trump) by turning the jury pool (the nation) against him. Everything the committee reveals, no matter how compelling, must be discounted by that realization. Predictably, this has led to the hyperbole and missteps that a rigged process invites.
The most notable example is the recent account of Cassidy Hutchinson, a 26-year-old former principal aide to Trump’s White House chief-of-staff, Mark Meadows. Hutchinson gave explosive eyewitness descriptions of many Trump misadventures. She was privy to concerns by top security officials about potential violence in the lead-up to January 6, the date of the constitutionally required joint session of Congress, presided over by Vice President Mike Pence (as the Senate’s presiding officer), for counting state-certified electoral votes and formally acknowledging the victor in the presidential election (Joe Biden). She was within earshot of an irate Trump just moments before he was to take the stage at the Ellipse and deliver his provocative speech.
That was when, she says, he exploded at security forces over the deployment of magnetometers, which were discouraging Trump fanatics from entering the area around the stage. The “mags” were essential because many people were armed—some with firearms, most with such other dangerous weapons as clubs, knives, and toxic aerosols, besides being arrayed for battle in helmets, flak-jackets, and all manner of camouflage. Trump was nonetheless enraged because this was keeping “my people” back on the Mall, rather than letting them through to the stage area. It would diminish “the shot,” the video image to be transmitted to Congress and the world of throngs protesting against the “stolen” election. “Get rid of the fucking mags,” Hutchinson recalled Trump railing. “Let my people in.” Trump was adamant that “they’re not here to hurt me,” powerfully illustrating his awareness that they may conceivably have been there to hurt others. They should be let in, he is said to have insisted, “and then they can march to the Capitol.”
In sum, the angry protesters were there because Trump had roused them for two months with false claims that the election had been stolen (the topic of January 6 committee sessions before Hutchinson’s appearance). The president well knew many rally-goers were armed and dangerous. Yet he willfully assembled his supporters into a mob and then spurred them on with a fiery speech, contending—despite some lip service about remaining peaceful—that Democrats at the Capitol were staging a fraudulent coup and that RINOs (Republicans in name only) were unwilling to fight them. The president exhorted the mob to march in protest on the Capitol, which he had to know was a legally restricted area whose security personnel could easily be overwhelmed by thousands of demonstrators. He even vowed to go with them, to lead the protest personally.
We previously knew the outline of this story and many of its details. Not for nothing was the impeachment article against Trump entitled “incitement to insurrection.” Nevertheless, Hutchinson’s account advances the potential criminal case by clarifying that the president was not just recklessly firing up a boisterous crowd. In her telling, he was acutely aware that the mob was armed and dangerous, and he fully intended to use those attributes, if not necessarily to attack, then at least to put lawmakers in fear—not merely of the steep political price to be paid for failing to back Trump’s scheme to derail the electoral count, but of forcible attack on themselves. Put aside the talk of incitement, a crime that the First Amendment’s protection of even fiery political speech makes very difficult to prove. More pertinent is the felony of intimidating federal officials (including the vice president and members of Congress)—meaning, to put them in fear of imminent physical harm. More pertinent as well is the felony of corruptly obstructing congressional proceedings. And of more moment to prosecutors is the fact that aiding and abetting others in carrying out these activities is equally felonious. Hutchinson’s account appears to edge Trump closer to the line of criminal liability than he has ever been, perhaps even over it.
Or at least it seems that way—until we remember that Hutchinson’s account is not really testimony in the popular understanding of that term, as it applies to the proof of crimes. To be sure, she was under oath and subject to the penalties of perjury. But the committee, highly political and unapologetically anti-Trump, insulated her from cross-examination, and the Biden Justice Department is not in the business of pursuing perjury charges against anyone who gilds the lily when it comes to the former president. This is not to say that Hutchinson lied. She seems earnest. But to call her account untested is to understate the matter. The committee, in its zeal, may have led her into gratuitous errors, which Trump apologists are already exploiting to cast doubt on everything she said.
Hutchinson was led through her narrative by the committee’s most visible member, vice chairwoman Liz Cheney, a Wyoming Republican. Cheney’s obsessive anti-Trump stance is the sole reason she is on the Democrat-controlled select committee, which was handpicked by Speaker Nancy Pelosi over the objections of House GOP leadership. Obviously shooting for a sensational, headline-grabbing vignette, Cheney had Hutchinson relate a wild scene in the Secret Service vehicle driving away from the Ellipse speech. Fearing danger, the agents insubordinately refused Trump’s demands to be driven straight to the Capitol to join the protest. Hutchinson reported that an apoplectic Trump lunged from the backseat to grab the steering wheel; that prompted the head of the security detail, agent Robert Engel, to grab Trump’s arm, which she said induced Trump to flail at Engel’s throat with his free hand.
Jaw-dropping, yes. But is it true? Hutchinson acknowledged that she did not see the skirmish firsthand; rather, it was related to her moments later in Meadows’s office, after the detail returned the angry president to the West Wing. Hutchinson said that, in Engel’s presence, the story was related to her by another Secret Service agent, Tony Ornato, the White House security chief.
To begin with, then, Cheney presented this explosive incident by hearsay, through a witness who would not be permitted to testify about it in a normal criminal case under federal rules of evidence. Worse, through Secret Service sources, Engel and the unidentified agent who was driving that day let it be known that they were willing to testify that no physical altercation took place. To this point, they haven’t done so. Still, we already know it couldn’t have happened the way Cheney elicited it. She had Hutchinson describe the alleged altercation as if it happened in the presidential stretch limo known as “the Beast”—the interior contours of which render implausible the image of a chubby septuagenarian reaching the wheel against gravity and the resistance of very fit security agents. In reality, Trump was driven that day in an SUV, in which the back seat is not as recessed as in the Beast. Nevertheless, Ornato (through an unidentified source) has reportedly alleged that he never told Hutchinson any such story and was stunned by her account when watching it on television.
Could Engel and Ornato, or their anonymous intermediaries, be lying? It’s possible. Still, everyone involved now concedes that both agents were interviewed by the committee earlier in the investigation. They were apparently not asked about the altercation in the car. That would certainly be understandable if the committee did not know about it until stumbling on the story much later, secondhand, in interviews of Hutchinson. But given that the committee had access to Secret Service witnesses with firsthand, admissible testimony, how could it have failed to attempt to corroborate Hutchinson’s account with them before having Hutchinson narrate it in a nationally televised docudrama?
Hutchinson also described a meeting in Meadows’s office, where staffers brainstormed on a statement they hoped Trump would give, encouraging the rioters to stand down. Hutchinson said she grabbed some stationary and scribbled notes as Meadows narrated and White House lawyers chimed in. Cheney even showed Hutchinson the note and elicited that the former aide recognized her handwriting. Just hours after the hearing, however, a spokesman for former associate White House counsel Eric Herschmann, a cooperative witness on whom the committee has heavily relied, announced that Herschmann not only had written the notes but had told the committee as much in deposition testimony. Again, the committee apparently did not confront the witnesses with their contradictory accounts before publicly eliciting Hutchinson’s claim. We don’t know who is right, but if Herschmann is, and thus Hutchinson misidentified her own handwriting, Trump apologists pointedly ask: What else does she have wrong?
And again, it is an unforced error: Trump never issued the statement asking rioters to leave the Capitol. Plus, the notes are irrelevant: what matters is that staff were pleading with the president, but he was impervious, thundering that the rioters were doing nothing wrong and that it was Pence who betrayed him by refusing to discount state electoral votes—as Hutchinson heard Meadows remind then–White House counsel Pat Cipollone just moments after Trump’s tirade on the subject.
In just the same way, what really matters is not whether Trump got into a minor scrum with his security detail but that he was adamant about leading the protesters to demonstrate against Congress and incensed at being thwarted by subordinates. But as professional as they may profess to be, congressional committees are political in nature. Methodically building a case, as law-enforcement investigators do, is not Congress’s strong suit. Clearly, this committee cannot resist going for the splashy scandal even if doing so disserves the search for truth.
A committee that lacks an opposition perspective to keep it honest is uniquely prone to this kind of amateurish grandstanding. The January 6 committee is not, strictly speaking, partisan. Besides Cheney, Adam Kinzinger of Illinois, another anti-Trump Republican, was recruited by Pelosi to lend the patina of bipartisanship. But they and the panel’s seven Democrats are monochromatically committed to nailing Trump. Such is their tunnel vision that they are more indignant than apologetic about suppressing his side of the story. It is a foolish approach, for the committee has presented very strong Republican witnesses who would easily have withstood questioning by Trump’s House GOP allies. That would have bolstered the panel’s credibility.
The January 6 committee hopes to convince the Justice Department to indict Trump. That is subsidiary to its main goal: demonstrating to the public that he is unfit for the presidency. In that, the committee may succeed, despite itself.
Photo by Tom Williams/CQ-Roll Call, Inc via Getty Images