Congress Needs Litigators to Help Investigate U.S. Capitol Attack

The Senate’s failure to approve the establishment of a blue-ribbon commission to investigate the Jan. 6 attack on the U.S. Capitol was an abject dereliction of duty and contrary to established precedent. For 80 years, that’s been the traditional response to significant national failures such as Pearl Harbor, the Kennedy assassination, the destruction of the space shuttle Challenger, the Iran-Contra scandal, 9/11, and intelligence and policy failures in the Iraq war.

The reluctance of most congressional Republicans to support such an inquiry, many apparently for reasons of political self-interest, will not redound to their credit when the history of our troubled era is written. Absent a commission, congressional Democrats will likely establish a bipartisan special committee to conduct the needed probe into the causes of, and responses to, the riot.

The powers of such committees are considerable. The U.S. Supreme Court described Congress’ investigative powers as “penetrating and far-reaching,” “essential and appropriate,” and most recently by Chief Justice John Roberts in Trump v. Mazars as “broad” and “indispensable.” These committees have long precedent and are grounded in Congress’ judicially recognized responsibility for oversight, which is implied by the Constitution’s vesting of legislative powers in Article I, as well as the rules of the Senate and House.

Our nation has learned lessons from past committees. The Senate Special Committee to Investigate the National Defense Program during World War II, which helped lead to Harry Truman’s selection as vice president. The House Un-American Affairs Committee’s Alger Hiss hearings that launched the career of Richard Nixon. Watergate, Iran-Contra, and most recently the Benghazi attack led to the formation of committees as well.

With historical lessons in mind, Congress should employ litigators to participate in the investigation. Below we discuss why we think this will help the country learn what really happened on Jan. 6.

Investigative Powers of Congress

Congress’ investigative powers are limited by the Bill of Rights, the separation of powers, and committee jurisdiction; the information it seeks must be pertinent, and in furtherance of a valid legislative purpose. Congress may subpoena documents and testimony (most famously, for Nixon’s White House tapes) and enforce them through findings of contempt; conduct interviews, depositions and hearings; grant “use” immunity; and make criminal referrals to the Department of Justice for material and willful false statements, or obstruction of justice, for example.

The Fourth Amendment allows witnesses to challenge subpoenas in federal court as unreasonably broad or burdensome. Even sensitive business information, and records ordinarily protected from disclosure by the Freedom of Information Act, Privacy Act, or Trade Secrets Act must be produced—and may be publicly disclosed by Congress.

Natural persons may invoke Fifth Amendment rights against self-incrimination, but not as to third parties, nor to prevent the disclosure of documents kept in a representative (e.g., corporate) rather than personal capacity. Witnesses do not have Sixth Amendment rights to cross-examine other witnesses.

Witnesses may be accompanied by counsel, but Congress does not regard itself as obligated to respect the attorney-client privilege, and counsel have no right to interpose the kinds of objections they might raise in a court proceeding (although by sheer chutzpah and persistence, some do). A committee chairman may punish breaches of order, decorum, or ethics by counsel, including through censure, exclusion from the hearing, or refer him or her to the full chamber for contempt.

Hearings are generally held in public, except to protect sensitive law enforcement or national security information, or if the subject matter “would tend to defame, degrade, or incriminate any person.”

Under Congress’ inherent contempt authority, reluctant witnesses can even, in theory, be held by the Sergeant-at-Arms in the Capitol “Gaol” for the duration of the legislative session in which the contempt occurred, although the last time this was contemplated, in 1934, the witness was kindly placed in the Willard Hotel instead.

The modern practice for criminal contempt is for Congress, pursuant to majority votes by both the committee and the full House or Senate, to ask the Justice Department, through the U.S. attorney for the District of Columbia, to present the case for a misdemeanor charge, punishable by $1,000 fine and imprisonment of one to 12 months, to a grand jury. DOJ and the U.S. attorney may exercise their discretion not to act.

Senate rules provide for civil contempt as well, and the House can exercise such power by resolution, and seek the enforcement of subpoenas by the U.S. District Court for the District of Columbia.

Armed with these authorities, there is no good reason Congress cannot conduct a serious investigation into what happened, and why, on Jan. 6.

The Unfortunate Realities Call for Litigators

Unfortunately, Congress usually has members and not committee counsel lead the public examination of witnesses, and in five-minute increments, alternating between the majority and minority parties. No grand jury proceeding or trial would proceed this way, for obvious reasons.

Also, members in televised proceedings tend to give windy speeches rather than ask questions, and what questions they do ask are often rhetorical. On the other hand, nobody elected committee counsel to anything. Members need to show their constituents (and donors) that they are doing the jobs for which they were sent to Washington, and a free appearance on television is an irresistible opportunity to attempt to create a film clip that will “go viral” on social media.

If Congress establishes a committee to look into what happened on Jan. 6, it should seriously consider hiring experienced litigators to lead the questioning, as the House Judiciary Committee wisely did in its first impeachment of President Donald Trump in 2020. And the chairman and ranking member would be well-advised to dispense with the practice of alternating the examinations between Democrats and Republicans in short blocks of time.

The country, and history, deserve to know the full story of Jan. 6. While a commission would have been the best means to that end, Congress can still rise to the occasion with a special committee.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Write for Us: Author Guidelines

Author Information

David Laufman served as deputy minority counsel to the House Foreign Affairs Committee and Investigative Counsel to the House Ethics Committee.

Kevin Carroll served as senior majority counsel to the House Homeland Security Committee.

Both are partners at Wiggin and Dana LLP in Washington, D.C.