Preparing for the January 6th Select Committee Hearings: Frequently Asked Questions

The Select Committee to Investigate the January 6th Attacks on the United States Capitol was established on July 1, 2021. As the resolution establishing the committee states, it’s purpose is to “investigate and report upon the facts, circumstances, and causes relating to the January 6, 2021 domestic terrorist attack” on the U.S. Capitol and its attempt to interfere with the peaceful transfer of power. The Committee is also charged with looking at “influencing factors that fomented such an attack on American representative democracy.” 

Yes. The Committee was created by a bipartisan vote and has bipartisan membership, with Rep. Bennie Thompson (D-MS) serving as its Chair and Rep. Liz Cheney (R-WY) serving as its Vice-Chair. Numerous courts have confirmed the legitimacy of the Committee and its investigation, including a federal court presided over by a Trump appointed judge, U.S. District Court Judge Tim Kelly.  Judge Kelly’s ruling confirmed that the Committee was formed in adherence with legislative processes, is properly constituted with members from both parties, and that their subpoenas have been for legitimate legislative purposes.

In fulfilling its mandate to look at the “influencing factors” that fomented the January 6th attack, the Committee has interviewed over 1,000 people throughout its inquiry, most of them voluntarily.  Key figures of interest include former President Trump and his family and inner circle, including his personal lawyer Rudolph Giuliani, former aide Stephen Bannon, former national security adviser Michael Flynn, former Acting Assistant Attorney General Jeffrey Clark, former outside counsel John Eastman, and former chief of staff Mark Meadows.  Several former White House officials, members of Congress, outside advisors and groups, far-right figures, and media entities are also of interest.

A criminal referral is a notice sent to a prosecutorial body recommending criminal investigation or prosecution. Upon receipt of a referral, the Department of Justice may choose to investigate to determine whether or not to prosecute.

The Department of Justice however does not need a criminal referral to bring charges against January 6th participants. As is always the case, the Justice Department may choose to prosecute based on credible evidence of criminal misconduct that it has uncovered on its own.

A subpoena is a written summons issued by a government agency to compel witness testimony or production of evidence. Although subpoenas are generally issued by a court, either house of Congress can issue a congressional subpoena pursuant to a congressional investigation. Rule XI, Clause 2(m)(3)(A)–(D) of the Rules of the House of Representatives permits a House committee to issue investigative subpoenas for documents or testimony to “any person or entity.” This rule was made applicable to the Select Committee when the House of Representatives passed House Resolution 503 establishing the Select Committee’s procedures and processes.

Willful noncompliance of a congressional subpoena is a federal crime. As a matter of separation of powers however, Congress cannot prosecute an individual for ignoring a subpoena. Instead, it can approve a resolution finding an individual committed contempt of congress and then refer the case to the Department of Justice for prosecution. To date, the House of Representatives has voted to hold four individuals in contempt of congress for subpoena noncompliance in relation to their January 6th investigation – Steve Bannon, Mark Meadows, Peter Navarro, and Dan Scavino. In November, the Department of Justice indicted Steve Bannon on two counts of contempt of congress stemming from his failure to comply with a subpoena for testimony and records. In June, on the same day that a grand jury indicted Peter Navarro on two counts of criminal contempt of congress from his failure to comply with the Select Committee’s subpoena request, the Department of Justice also indicated that it will not charge Mark Meadows or Dan Scavino for their subpoena noncompliance.

While members of Congress have generally offered voluntary testimony in Committee probes, the refusal of five Republican representatives whom the Committee has reason to believe have pertinent first-hand knowledge necessitated the issuance of subpoenas to Rep. Kevin McCarthy (R-CA), Rep. Scott Perry (R-PA), Rep. Jim Jordan (R-OH), Rep. Andy Biggs (R-AZ), and Rep. Mo Brooks (R-AL) to compel testimony. To date, none of them have been held in contempt of congress.

Prior to the Committee issuing its final report, there is nothing in the House Rules that prevents it from calling additional witnesses.

Although there might be legitimate debate about whether the Speech and Debate Clause can be invoked to protect members’ floor statements when they object to the certification of the electoral college results, collaborating with individuals planning an attack on the U.S. Capitol is certainly not protected by the Speech and Debate Clause.

The U.S. Constitution’s Speech and Debate Clause provides that senators and representatives “shall not be questioned in any other place” about speech and debate that takes place in the House or the Senate.  Although the clause has been interpreted to provide wide criminal and civil immunity for statements made while carrying out official duties, the Supreme Court ruled in United States v. Brewster that the clause does not apply to non-legislative functions. Because collaborating with individuals planning an attack on the U.S. Capitol does not relate to any legitimate legislative function, those actions would not be protected. 

The Committee has made clear that its final report will include recommendations for legislative reforms to prevent a future attack. Outside experts have speculated that this might include suggested reforms to the Insurrection Act, the Electoral Count Act, and the Presidential Transition Act.

• The Insurrection Act of 1807 allows wide authority for presidents to deploy the military within the United States in response to rebellion. Former President Trump threatened invocation of the Act in 2020 to suppress protests over the police killing of George Floyd and Members of Congress, including Rep. Marjorie Taylor Greene, recommended Trump invoke it to declare martial law and stay in power after the January 6th attack. Limiting this wide authority could prevent the risk of rogue presidential military deployment for the purpose of maintaining office through insurrection or abuse of protesters.
• The Electoral Count Act of 1887 is a federal law setting out the procedures for counting the electoral college votes following a presidential election. The legislation has several well documented vulnerabilities stemming largely from its vague and antiquated language. Donald Trump and his former attorney John Eastman tried to exploit these flaws when they pressured former Vice President Mike Pence to refuse to certify Joe Biden’s electoral college win on January 6, 2021. Reforming the Act to remove ambiguities about the roles that federal and state actors play in the process could help prevent future actors from abusing the process.
• The Presidential Transition Act of 1963 governs the processes and procedures for the federal government’s transition planning when a new president is elected, including an allotment of funding for the General Services Administration (GSA) to provide suitable office space, staff compensation, and other services associated with the presidential transition process. Following GSA Administrator Emily Murphy’s delay in providing Joe Biden with transition resources after the 2020 presidential election, experts have suggested removing the Administrator’s role in releasing transition funds and replacing it with self-executing terms. 

In addition to reforming existing legislation, it is also important for the Committee to consider new legislation like the Protect Our Democracy Act (PODA) which was passed by the House of Representatives in December. PODA is a bipartisan comprehensive set of reforms designed to strengthen America’s democratic institutions by protecting our elections, strengthening checks and balances, and preventing presidential abuses like those perpetrated by Donald Trump.

No. The prosecution of a former president would be unprecedented. However, a DOJ Office of Legal Counsel (OLC) memorandum issued in 2000 explicitly concluded that nothing in the Constitution precludes the prosecution of a former president. Specifically, OLC concluded that a former president could be prosecuted after having been impeached by the House of Representatives while in office, despite being acquitted by the Senate.

Members of Congress who participated in attempts to overturn the 2020 election could be held accountable through contempt of Congress for defying a subpoena, criminal conspiracy charges, or prohibition from holding elected office under the Disqualification Clause in Section 3 of the 14th Amendment.

Congress can and has enforced Section 3’s Disqualification Clause against sitting members. During Reconstruction and on one occasion during World War I, Congress refused to seat members-elect who were deemed ineligible under Section 3.

The provision, Section 3 of the 14 Amendment, reads, “No person shall be a Senator or Representative in Congress…who, having previously taken an oath…to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the United States… or given aid or comfort to the enemies thereof.” As legislative history and other evidence suggest, the definition of “insurrection or rebellion” is not limited to the Civil War or any war at all.

Due process guarantees prohibit Congress from simply declaring that someone other than a member of Congress is ineligible to serve under Section 3 without the concurrence of the courts. At most, Congress can express its opinion that such individuals are ineligible with the expectation that courts would give that determination deference under City of Boerne v. Flores’ “congruence and proportionality” standard.

Criminal obstruction of a proceeding under 18 USC §1512(c)(2) is the corrupt obstruction, influence, or impediment of an official proceeding and is a felony. §1515(a)(1)(B) defines “official proceeding” to include “a proceeding before Congress”, such as the joint session of Congress to certify the electoral college vote which was interrupted by the January 6th attack on the U.S. Capitol. An individual violates this prohibition if they (1) corruptly, (2) obstruct, influence, or impede, (3) an official proceeding.

Factually, there seems little doubt that Trump and members of his inner circle agreed upon and tried to implement a plan to prevent Congress from certifying the electoral college results on January 6, 2021. Therefore, the only outstanding legal question is whether they did this corruptly. Legally, “corruptly” is understood to mean that a defendant has both a “specific intent to obstruct, impede, or influence [a] proceeding” and there is a connection between that obstructive conduct and the official proceeding. Trump’s attempts to obstruct and interfere with the electoral count were undertaken “corruptly” because the facts suggest he was motivated by his desire to retain power.  Moreover, he did so despite he and his collaborators knowing, or having reason to know, that he lost a free, fair, and secure election.

Under 18 USC §371, any two or more persons who conspire to commit an offense against or defraud the United States or any of its agencies, and act to effect the conspiracy have committed a federal offense punishable by fines and/or imprisonment upon conviction.  To be convicted under the statute, a defendant must both satisfy the “offense prong” which prohibits conspiracies to commit acts that are otherwise defined as criminal under federal law and the “defraud prong” which criminalizes conspiracies “for the purpose of impairing, obstructing, or defeating the lawful function of any department of Government” through “deceit, craft or trickery, [or] by means that are dishonest.” Crucially, a conspiracy does not have to be successful for someone to be found guilty of criminal conspiracy.

Criminal conspiracy charges may apply to Donald Trump, John Eastman, Jeffrey Clark, and Mark Meadows. There is strong evidence that Trump, Eastman, and Clark agreed on the end goals of obstructing the electoral count and interfering with the DOJ’s election enforcement work. The evidence may also suggest that there was a similar agreement between Trump and Meadows. There is also strong evidence showing that Trump, Eastman, Clark, and Meadows subjectively knew that Trump lost a secure and fair election yet sought to keep Trump in office through deceptive means.

To label conduct as sedition or treason goes beyond normal criminality to suggest that the conduct strikes at the heart of American democracy.

Seditious conspiracy requires the government to prove that there was both a conspiracy and that its aim was sedition. Under 18 USC § 2384, individuals have committed sedition when they “conspire to overthrow, put down, or to destroy by force the Government of the United States…or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” Importantly, the statute allows for prosecution even if the plot does not actually come to fruition.  

When a plot is carried out, an individual may be prosecuted for treason. Treason is the only criminal offense mentioned in the U.S. Constitution, underscoring the seriousness of the betrayal. Under 18 USC § 2381, an individual commits treason if they owe an allegiance to the U.S. Government and intentionally betray that allegiance by “levy[ing] war” against the government or aiding its enemies. By design this prohibition applies to all American citizens, each of whom owes an allegiance to the U.S. Government.