Last week, the House Jan. 6 committee conducted its last hearing and issued its final report. And we’ve begun releasing the voluminous evidence gathered during the course of our investigation in the form of witness interview transcripts, exhibits, text messages, emails, videos and more.
It is on the basis of this evidence — not politics — that we have referred former President Donald Trump to the Justice Department for potential prosecution for four offenses: two involving conspiracy charges, another concerning his obstruction of the joint session of Congress, and the most serious, covering his role in aiding and assisting the insurrection.
Not since Watergate has a congressional committee taken on such an important duty of oversight and accountability. But it will be up to Attorney General Merrick Garland, special counsel Jack Smith and the capable attorneys at the DOJ to provide justice.
For the four years of Trump’s presidency, the Department of Justice took the position that you cannot indict a sitting president. This is a flawed reading of the Constitution. There is no provision barring the indictment of the nation’s chief executive if they are engaged in criminal activity — even if, as a prudential matter, you would defer such a trial until the end of their term. But if the department now decides, after finding sufficient evidence to charge Trump with a crime, that it would be too controversial or too divisive to prosecute a former president, that would effectively immunize him or any future president from criminal liability. The founders would have never subscribed to such a dangerous proposition.
So the Justice Department must hold itself to the standard it set at the beginning of its investigation into the Jan. 6, 2021, attack on the U.S. Capitol: Follow the evidence wherever it leads. But there is more needed to protect our democracy than oversight, accountability and even justice.
There must also be reform. In the committee report, we laid out several steps that Congress must take to prevent another would-be autocrat from tearing down our democratic institutions and stopping the peaceful transfer of power.
One of these key reforms is included in the year-end omnibus spending bill, and will reform the 19th century Electoral Count Act, the law that governs the congressional process used to certify the winner of a presidential election. It was this archaic law that Trump sought to exploit, by pressuring his own vice president to reject the states’ lawfully selected electors and declare Trump to be the winner. Under this new reform, Congress reaffirms that the vice president has no such authority and, crucially, that after an election a state cannot change the rules for awarding electors to effectively nullify the popular vote of its constituents.
Another reform we recommend is a law clarifying the House’s ability to enforce its own subpoenas, and to seek expedited enforcement in the courts. This mirrors a provision in the Protecting Our Democracy Act, a bill I authored last year which passed the House but was held up by Senate Republicans.
Even now, committee subpoenas are being litigated in the courts, their enforcement stalled by the litigious practices of Trump and his enablers. When the current session of Congress ends on Jan. 3, 2023, those subpoenas will lose their force, and would do so even if the new majority were not bent on thwarting our work. The subjects of congressional investigation should never again be able to evade oversight by exploiting the glacial speed of the courts.
We must also confront the rising tide of bigotry and the increasing danger of racially motivated violent domestic extremism. The Jan. 6 insurrection was not just a reaction to Trump’s “Big Lie” alleging massive fraud, it was also an assault on our institutions by white nationalist groups bent on supporting a president entirely sympathetic to their cause. Unless we address these threats, we will continue to leave our country and our democracy vulnerable. For this reason, our committee recommends reforms meant to achieve a whole-of-government approach to combating domestic violent extremists and violent anti-government militias.
Other important reforms would narrow the applicability of the Insurrection Act, which Trump supporters urged him to invoke as a means of justifying the use of force to stop the joint session of Congress. We should also clarify who has standing to seek a court order disqualifying an insurrectionist from holding office under Section 3 of the 14th Amendment, address the role social media plays in radicalizing people, protect election workers from threats and intimidation, and more.
When the Sept. 11 Commission concluded its report, its members spent the next several years — along with the families of victims of that terrible tragedy — making the case to the country and the Congress why reforms were so vital to preventing another attack. There may be a similar role for our nine members, including those soon to depart Congress, in seeing that these new protections become law.
The oversight the Jan. 6 committee did was difficult, and the pursuit of justice may be even more so, but the steps we take to prevent another despot from subverting our democracy in the future may be the most challenging and consequential of all.