By Norman Eisen, Adrianna Pita
As the House Select Committee to investigate the January 6 attack on the U.S. Capitol holds its first public hearings in nearly a year, Norm Eisen lays out what Americans can expect from the proceedings and the committee’s objectives over the coming months.
- Trump on Trial: A Guide to the January 6 Hearings and the Question of Criminality
- Fulton County, Georgia’s Trump Investigation
- Assessing the right-wing terror threat in the United States a year after the January 6 insurrection
- Watergate Committee hearings may be both an inspiration and a hard act to follow
Listen to Brookings podcasts here, on Apple or Google podcasts or on Spotify, send email feedback to [email protected] and follow us at @policypodcasts on Twitter.
Thanks to audio engineer Gaston Reboredo.
PITA: This week the House Select Committee to Investigate the January 6 Attack on the U.S. Capitol will hold its first public hearings in nearly a year to detail their investigation into the potential culpability of former President Trump and other top Republicans for the violent insurrection and efforts to overturn the election of President Biden.
With us today to talk about the committee’s investigation and upcoming hearings is Norm Eisen, senior fellow, Governance Studies, and co-author of a new report, “Trump on Trial: A Guide to the January 6 Hearings and the Question of Criminality.” Norm, thanks so much for talking to us.
EISEN: Adrianna, always nice to be with you and back on The Current.
PITA: Currently there are two hearings scheduled: this Thursday, June 9, and another upcoming Monday, June 13, with others likely to follow throughout the summer. For the two most recent upcoming, what can we expect to hear from the committee? What have they said that they plan to put forward?
EISEN: Well, for this initial, very first hearing, of course, we’re going to hear from the committee members and typically that will mean the chairman, Bennie Thompson, a Democrat; the vice chairman, Liz Cheney, a Republican – quite conservative Republican at that – but they and the bipartisan members of the Select Committee are unified on the seriousness of the threat to our democracy represented by January 6, by the insurrection.
I think we’ll hear about that. I think we’ll hear from them in the first hearing and then in the hearings beyond not just about the events of that day – very, very important – but the long run-up to January 6, the planning, the former president’s successive, mounting, increasingly serious assaults on the election results that culminated in his insurrection incitement and the insurrection itself on January six and what has happened since. Because the big lie that he won the election, which he continues to purvey, Adrianna, is continuing to drive hundreds of election-denying candidates or bills from coast to coast. So we’ll hear about all of that.
The first hearing will focus on the events of January 6 themselves: a Capitol police officer who was in the midst of the violence, Caroline Edwards; a documentary filmmaker embedded with the insurrection, that’s Nick Quested. His footage – and we’re gonna see a lot of video footage, some never before seen – his footage is like the Watergate tapes, is a real time accounting of what happened. So that’s the first day. And then we’ll hear from a variety of witnesses over the successive hearings: former senior Trump officials live and on tape, including likely Jared Kushner and Ivanka Trump, the president’s daughter and son-in-law, two of the most high-ranking officials and in the White House, DOJ, and other very senior government officials.
PITA: Several of President Trump’s top staff, including his Chief of Staff Mark Meadows, advisors Peter Navarro and Steve Bannon, were subpoenaed along with others to talk with the committee. All three of those declined to appear. Navarro and Bannon have been indicted for contempt of Congress. Can you tell us how important it is to get direct testimony from top officials like that versus what’s gathered from you either more junior supporting staff or from electronic records?
And how much does it matter that both Meadows and Deputy Chief of Staff Dan Scavino, who also defined a subpoena, haven’t been charged with contempt? How might that affect either the substance or the perceptions of the committee’s work?
EISEN: Well, I think it is very important to get firsthand testimony, and the most important is the live testimony, and they will convey that with witnesses at these hearings. And we will have very senior — I don’t think there was anybody more high-ranking in practice in the Trump administration than Jared Ivanka. I’m sure we’ll see from them on video. There’ll be other live witnesses who appear. Look, there’s no denying it, Meadows and Scavino were important witnesses. I do think that there are ways that you can work around that. Let’s remember, there are 1000 witnesses, over 1000 who actually did show up and relatively few who refused.
Of the two, Meadows is more important. The way that committee is dealing with that is, they have Meadow’s documents and some of those have emerged into public view already. They’re a treasure trove: the texts that he was sending, the materials that he provided very, very important. They include the plans for the assault on the election, the false legal claims that were being made, and on and on. So there are ways. Oh, they have Cassidy Hutchinson, one of Meadows’ deputies, who was in many of the meetings, who’s describing the information, so there are workarounds.
I think Meadows and Scavinio should have been prosecuted by DOJ. I think the reason likely the DOJ didn’t prosecute – DOJ was somewhat close-mouthed about it — you know there are a series of opinions of the Office of Legal Counsel of the Department of Justice, kin of the internal law firm of DOJ and the U.S. government. I often disagreed with OLC when I was working in the White House; I disagree with some of these opinions, but some of those opinions, including some that were issued, too, as CYA documents, in my view, for shenanigans by Donald Trump and Bill Barr, may insulate Meadows from prosecution or at least give him some ammunition supposedly to push back. I don’t agree, I think it could have been overcome, but you gotta respect the prosecutor’s decision.
PITA: Alright. Well, the ultimate question is, of course, what will result in the committee’s work in the way of accountability? We’ve seen this week leaders of the far-right extremist group Proud Boys indicted on charges of seditious conspiracy for their part in the violence at the Capitol that day. I want to ask you to touch on that briefly first explain to us sort of the seriousness of the seditious conspiracy charge, but then in the broader picture what this tells us about how the department, the DOJ’s ongoing investigations, how those intersect with the committee’s?
EISEN: Well, the, the most important concrete outcome, ultimate outcome, of the committee investigation is the prosecution, if merited, of Donald Trump and his co-conspirators. We know a federal judge in California, in the course of litigating a committee subpoena, did a deep analysis and determined that it was likely that the president and co-conspirators violated federal criminal law.
The committee are not prosecutors; they can’t and shouldn’t open the hearings by declaring, “Donald Trump is guilty of crimes.” That would affect their credibility. But what they can do is do a thorough investigation, get the story out there, and cooperate. It is typical for congressional investigative committees, because they get so much information, to cooperate with state and federal prosecutors, and I think — I have a big new Brookings report on the January 6 committee hearings and the question of criminality, and I think that at the end of the hearings, the committee should either make a formal criminal referrals to the United States Department of Justice and at least to the Georgia Fulton County D.A. Fani Willis of criminal charges, or at least summarize the evidence, give them all the evidence, do a roadmap like the Watergate roadmap which summarizes the most important and attach the most important evidence. I think it is quite likely that there are going to be prosecutions down the line.
PITA: Okay. Talking about your report, you talked about what were some of the most important objectives to the committee, and that was as you’ve already said, laying out the evidence for the prosecutors, but another major objective is putting the truth out there for the American people. We’ve been speaking about Watergate; next week is the 50th anniversary of the Watergate break-in. It was interesting, NPR had a good piece looking back at that investigation and the Watergate special committee ultimately held more than 50 sessions all of them public, all of them televised in full and then rebroadcast by PBS in the evenings. They were carried live by the then-nascent NPR. Whereas now there’s definitely a sense that public attention and care might be waning a bit in a year and a half since the January 6 insurrection. A recent NBC poll saw a small decline in the number of Americans who say that President Trump bears some responsibility for the violence that day. While the committee undoubtedly hopes to reverse that by having these public hearings again front and center, and while of course the prosecutors opinions on legal culpability shouldn’t be swayed by public opinion, how much does our political climate today matter and how much might this affect what’s happening?
EISEN: Well, I think you’re going to see very strong attention to the launch of the committee. And it will be in primetime, the American people will be paying attention, it’ll be on networks on cable. That’s going to be a strong draw. And if they make a compelling case, I believe they will people will tune back in. Now you’re right, Adrianna, we’re not in the era of the Watergate hearings, where people would watch for months of wall-to-wall coverage. However, even in the streaming era, people will still tune in for new information, the committee is going to have a lot of that, and for a gripping tale, and I think the committee is going to deliver that as well. So I am optimistic that the American people will pay attention, that prosecutors will pay attention, and that we’re going to see a variety of outcomes. Who knows, maybe we’ll even get a little bit of new legislation – not the comprehensive package we got after Watergate, but perhaps Congress will be motivated to do something as well.
So, I’m a congenital optimist. And I’m optimistic that this launch of the hearings is going to get us off to a good start of commanding public attention.
PTIA: All right. Well Norm, thanks, as always, for your time today.
EISEN: Thank you, Adrianna, always wonderful being with you.