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Donald Trump meeting with Congressional leadership in the Cabinet Room

Reprinted with permission from Daily Kos

A bipartisan Senate inquiry into the January 6 attack on the U.S. Capitol is underway, but it's unlikely to be the only major investigation. Congressional leaders are also talking about a bipartisan commission like the 9/11 Commission, though there's disagreement on what that would look like.

Democrats are reportedly drafting a bill to set up a commission with 11 members: two chosen by each of the top congressional leaders in the two parties (House Speaker Nancy Pelosi, Senate Majority Leader Chuck Schumer, House Minority Leader Kevin McCarthy, and Senate Minority Leader Mitch McConnell) and three chosen by President Biden, with one of Biden's choices serving as chair. McConnell, however, is unhappy with that plan, describing it as a "bizarre partisan construct."

A competing Republican bill would have each of the top four congressional leaders appoint two members, Biden appoint a chair, and McConnell appoint a vice chair. (So McConnell would get the most choices? Hmmm.)

The 9/11 Commission was evenly balanced between Democrats and Republicans, but while it was successful at getting its recommendations passed and is now being cited as an uncontroversial model, its original chair and vice chair both stepped down and there were a series of conflicts over its work. Let's not allow the pretense that any such major investigation can happen free from disagreement or politics.

Jordan Tama, an associate professor at American University's School of International Service, has studied independent commissions going well beyond the 9/11 Commission. At Just Security, he writes that two factors are key to a successful commission: its credibility, and a carefully defined scope for investigation. Too narrow a scope, and the investigation doesn't get to the root causes of its subject. Too broad, and it can lose focus.

In this case, Tama argues, the scope of the investigation "should include examining how the attack was planned and carried out; the roles and motivations of extremist groups that were involved in it; the use of social media and other digital communications to facilitate it; how and to what extent political leaders inspired or contributed to it; whether foreign governments contributed to it; and what federal, state, and local law enforcement and intelligence agencies knew, did, and failed to do."

Similarly, writing at Lawfare, Herb Lin and Amy Zegart argued in January for a commission tasked with 10 major areas of inquiry, including law enforcement planning, intelligence warnings, a timeline of the events of January 6, the involvement of U.S. governmental actors and foreign actors, and, finally, "What changes in law, rules, regulation or policy for both the executive and legislative branches are necessary to reduce the likelihood of future violent attacks for political purposes against American democratic institutions, facilities and leaders? What would be the impact of such changes on privacy and civil liberties in the United States?"

The composition of the commission will be critical to its credibility, Tama further argues. He supports an evenly divided commission, but beyond that, "commissions are more likely to conduct their work in a bipartisan manner and reach consensus on their findings and recommendations when their members are not holding public office or engaged in other political roles during their tenure." Two out of three commissions he's researched have issued a unanimous report, and those that haven't have seen fewer of their recommendations adopted.

But even in the course of an argument for an evenly divided commission, Tama acknowledges the challenge: "Assuming they are both given some appointment power, will Senate Minority Leader Mitch McConnell and House Minority Leader Kevin McCarthy name commissioners who will be willing to follow the facts and support corrective measures even when Trump and his supporters deny or denounce those facts and proposals?"

That's the problem, isn't it? Choosing Republican former officials—people not worried about a primary challenge—would certainly open up the likelihood of a Republican who was willing to follow the facts. After all, a stream of Republicans have retired from Congress because they couldn't or wouldn't hack it in Trump's party, and still more former officials in Republican administrations have spoken out in recent months. There are plenty of longtime professional Republicans who are going to be willing to do an investigation that at least has a chance of implicating Donald Trump. But those are unlikely to be the people that Kevin McCarthy would choose, and McConnell, too, is questionable on that front. We're unlikely to be talking about a commission that includes former Rep. Justin Amash, former Gov. John Kasich, or former Sen. Jeff Flake. Or even Trump's own former defense secretary, Jim Mattis, for that matter. (Unless Democrats choose them in a fit of nonpartisanship or McConnell decides he's not going to be around to try for Senate majority leader again in 2023 and he really, really wants his obituaries to characterize him as a statesman.)

That leaves a very tricky balance between, on the one hand, a commission that Republicans will relentlessly demonize as a partisan Democratic operation and, on the other hand, a commission that can never succeed because its Republican members are dedicated to protecting the leader of their party. We'll see how it goes.

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