A New Senate Report Undermines FBI Excuses About Jan. 6

“Please sign onto the call,” wrote FBI Special Agent in Charge Jennifer Moore at 11:25 a.m. on Jan. 5, 2021. “This has a huge potential to be a hot mess.” 

Moore led the Intelligence Division at the FBI’s Washington field office. Her email—sent just over 24 hours before a pro-Trump mob attacked the U.S. Capitol—reflected the office’s mounting concern about the potential of violence the following day. 

Yet despite such material, FBI leadership told Congress again and again in the months and years after the Jan. 6 attack that the bureau couldn’t have anticipated the riot or done more to prevent it. 

The email from Moore is included in a new majority staff report released by the Senate Committee on Homeland Security and Governmental Affairs (HSGAC), examining the intelligence failures—primarily at the FBI and the Department of Homeland Security (DHS)—that took place in the run-up to Jan. 6. The report is sharply critical of the bureau and the DHS Office of Intelligence and Analysis (I&A). It pulls no punches in setting out just how the agencies floundered in identifying, communicating, and responding to threats before and during the riot. In fact, it might be Congress’s most aggressive contribution yet when it comes to addressing why intelligence agencies didn’t see Jan. 6 coming. 

The report sets out to answer a central, lingering question about Jan. 6: namely, why didn’t the government see this coming? The committee’s answer is a combination of an inability to recognize the threat as such, an unwillingness to utilize intelligence-gathering authorities clearly enshrined in law, and a failure to communicate within and between agencies. As the report goes on, the committee staff seems increasingly frustrated by the intransigence of the FBI and DHS in refusing to recognize the magnitude of their own errors.

“What was shocking is that this attack was essentially planned in plain sight in social media,” Chairman Gary Peters (D-Mich.) said in an interview with NBC about the report. “And yet it seemed as if our intelligence agencies completely dropped the ball.”

Peters’s conclusion stands in sharp contrast to the work of other congressional investigators, which have hesitated to address these failures. Most notably, the House select committee investigating the Jan. 6 attack on the Capitol focused on Donald Trump’s personal responsibility for the violence that day, underplaying—and in some instances, actively distorting—how the intelligence community “dropped the ball.” That characterization was part of a broader pattern of political noninterest in looking too closely at intelligence agencies’ role in the catastrophe of Jan. 6. While FBI Director Christopher Wray has caught plenty of flak from Congress on other issues, he’s received a remarkably solicitous welcome from the Hill when testifying about the bureau’s preparations ahead of the counting of the 2021 electoral vote. 

That’s not to say that everyone has ignored these issues. The Government Accountability Office and various inspectors general, including at the Department of Defense, DHS, and the U.S. Capitol Police, have put together a steadily accumulating stack of reports. (Notably, an investigation by the Department of Justice inspector general is still in progress.) And this latest report is actually the second document released by HSGAC examining the government’s failure to prepare for Jan. 6, following a bipartisan June 2021 staff report jointly authored with the Senate Rules and Administration Committee. That 2021 report examined the actions of a number of agencies, including the Capitol Police and the Pentagon, along with the FBI and DHS. It provided a detailed portrait of the unfolding disaster, but it also left important questions unanswered, particularly about why the FBI produced so little in the way of warnings in advance of the riot. 

This new majority staff report follows directly from that previous document. According to the latest report, following the joint 2021 effort, Peters directed the majority staff of his committee to carry out “a subsequent review focused on the intelligence failures leading up to the attack on the U.S. Capitol.” Judging by the materials cited in the report’s footnotes, that review seems to have relied in large part on documents already assembled during the joint Rules-HSGAC investigation, as well as those compiled as part of the House Jan. 6 select committee’s probe. In the case of the latter, HSGAC used available materials in new ways; of the 13 transcribed interviews before the select committee cited by the HSGAC staff report, three (from DHS official Stephanie Dobitsch, Acting U.S. Attorney for the District of Columbia Michael Sherwin, and National Fusion Center Association president Mike Sena) were not cited by the House panel in its final report. HSGAC staff also amassed additional new information in the period since the 2021 joint report was released, including from a transcribed interview with former Acting Deputy Attorney General Richard Donoghue, a statement from Moore, a briefing from I&A, and both a briefing and a written response to questions from the FBI.

In this sense, perhaps HSGAC’s 2023 report is best seen as a natural continuation of these two earlier investigations. But it’s sharper in its criticism of the FBI and DHS than the bipartisan 2021 report—and positively cutting compared to the Jan. 6 committee’s take. 

The report has little time for claims by the FBI and I&A that the agencies simply didn’t see the attack coming. “If everybody knew and all the public knew that they were going to storm Congress, I don’t know why one person didn’t tell us, why we didn’t have one source come forward and tell me that,” the report quotes Moore as telling the select committee. But the HSGAC majority staff dismisses this as “hand-wringing.” In fact, the report states, both the FBI and I&A received warnings of potential violence from any number of sources: other federal agencies, such as the U.S. Postal Inspection Service and the U.S. Marshals; local government agencies in Washington, D.C.; open-source researchers; social media companies like the right-wing network Parler; any number of tips; and even a staffer on the House Permanent Select Committee on Intelligence. (The HSGAC report seems particularly irritated that the FBI apparently gave short shrift to a warning from within Congress about a potential attack on Congress.) “Their plan is to literally kill people,” wrote one anonymous tipster. “Please please take this tip seriously and investigate further.”

After Jan. 6, the FBI’s leadership argued that the agency missed the many, many warnings on social media about a potential attack because the bureau’s internal guidelines forbade reviewing what users posted to online platforms. As one of us (Jurecic) wrote at the time, that explanation is, depending on the specific phrasing, either deeply misleading or outright wrong. The guidelines in question explicitly permit proactive monitoring of social media. And despite suggestions to the contrary by Wray and then-Assistant Director for Counterterrorism Jill Sanborn, the requirements that do exist for reviewing and recording such material would seem to have been easily met by the dire circumstances in advance of Jan. 6.

The majority staff is likewise unimpressed with the FBI’s excuse here. It states that FBI leaders “mischaracterized” what the bureau could and could not do, and that congressional testimony from Sanborn presented “an exaggeration of the limits on the bureau’s authorities.” In responding to questions from the committee on this subject, the FBI made one key—and telling—concession. According to the report, the bureau stated that, in advance of Jan. 6, it

had an open assessment that, under our investigative guidelines, gave us authority to identify, obtain, and utilize information about actual or potential national security threats, federal criminal activities or the vulnerability to such threats or activities.

This sounds wonky, but it’s actually crucial. Under the guidelines, a bureau employee may open an “assessment” if there exists an “authorized purpose,” which the guidelines define as “a national security, criminal, or foreign intelligence collection purpose” that must be “well-founded and well-documented.” Once the FBI opens an assessment on an issue, this enables it to use specified investigative authorities, though the bureau can also take some limited investigative steps even before opening an assessment. The FBI’s guidelines explicitly state that “employees may conduct Internet searches of ‘publicly available information’ … prior to the initiation of an Assessment” under certain circumstances. But once there’s an assessment on the table, the FBI’s guidelines provide for even greater authority to look through social media and other public information online for related material. 

Notably, testifying before the House in June 2021, Wray implied that no such assessment existed in advance of Jan. 6, saying that the bureau can’t “without proper predication and authorized purpose, just monitor just in case on social media.” Now it turns out that the bureau did indeed have an assessment that would have allowed it to proactively review social media posts in the runup to the insurrection. It just didn’t seem to have used that authority.

As to whether the FBI had other constraints on its ability to review social media in advance of the insurrection, the bureau wasn’t forthcoming:

The Committee also asked FBI whether it was unable to obtain or utilize any intelligence or information due to restrictions under federal law or agency guidelines, but FBI’s response only described its general efforts and did not indicate whether it was prevented from utilizing any intelligence or information.

According to the report, I&A also struggled with guidelines around collecting open-source information—in part because of the long shadow of the backlash to the agency’s aggressive approach to collecting material online during the 2020 protests over the murder of George Floyd. Employees were hesitant to report material they found discussing potential threats, even though the agency’s guidelines allowed it. When HSGAC asked the FBI about whether its behavior prior to Jan. 6 was affected by the same protests, the bureau “did not address the question and instead noted the high-level intelligence products it had issued throughout 2020 on general trends in domestic violent extremism.”

So it seems that both agencies failed to adequately look into the warnings of potential violence that were available to anyone with an internet connection—even though they apparently had the legal authority to do so. All the same, the HSGAC report documents plenty of indications that they did receive—and yet, despite this material, the FBI and I&A produced little in the way of warnings about potential violence. According to the report, I&A released only one document warning specifically about violence on Jan. 6. That document, which presented raw intelligence about potential violence by members of the Proud Boys, was produced on Jan. 5 and was shared only internally within the agency. According to the majority staff report, I&A failed to share the document with the Capitol Police (USCP) because “USCP is not a member of the intelligence community” and because—bewilderingly—“I&A assumed USCP was receiving the information from other agencies.”

The FBI, meanwhile, has made a great deal of a Situational Information Report (SIR) produced by the bureau’s Norfolk, Virginia, field office on Jan. 5, which warned of potential violence the following day. Wray has previously pointed to this document to try and show that the agency wasn’t entirely caught with its pants down. According to the HSGAC report, though, the Norfolk document didn’t provide much in the way of warning:

Majority Committee staff found that the SIR did not note the multitude of other warnings and intelligence that [the Washington field office] had received up to that point …. Most notably, the Norfolk SIR did not note that individuals were calling for protesters to storm the Capitol, despite evidence the Committee obtained that demonstrates that FBI was aware of intelligence and warnings regarding calls to storm the Capitol. Nor did the Norfolk SIR warn that individuals or groups may be armed, despite evidence the Committee obtained that demonstrates that FBI had information that individuals and groups were planning to bring weapons to the Capital Region.

But it turns out that the Norfolk bulletin wasn’t the only document that came out of the bureau in advance of Jan. 6. There was a second bulletin, also from a field office—this time, in New Orleans. Unfortunately for the FBI, the majority staff isn’t particularly impressed with this report, either. The New Orleans document, the staff report writes, “provided limited information about a specific piece of intelligence and did not speak to the multitude of warnings and other intelligence that [the Washington field office] had obtained about the potential for violence at the Capitol”—including the cascade of tips and information from other agencies described above. And both reports weren’t widely distributed in advance of Jan. 6. 

The majority staff report highlights one of what we might call “Murphy’s Law” contributors to the failures on Jan. 6. As we discussed on the Lawfare Podcast with Nick Schwellenbach of the Project on Government Oversight, staff and resulting operational changes in the USCP intelligence division in the months prior to Jan. 6, while not intended to hamper efforts, did nonetheless create a range of challenges for the department. What’s more, the fact that the most vital period of intelligence gathering and processing came during the 2020 holiday season—at the end of “an awful year where everyone just wanted a break,” in the words of NBC News Justice reporter Ryan Reilly on the Lawfare Podcast—also likely meant that agencies weren’t putting their best feet forward.

Another such factor, discussed by the majority staff report, was an ill-timed transition in the FBI’s contract for monitoring open-source material on the internet. The bureau’s contract with Dataminr for this purpose expired on Dec. 31, 2020. A new company, ZeroFox, was set to take over responsibility on Jan. 1, 2021, for flagging potential threats, based on established search terms, for further investigation by the FBI. But, as emails obtained as part of the investigation reveal, key figures at the FBI’s Washington field office, including Jennifer Moore, were not aware there might be a disruption in functionality. As on Jan. 2, field office personnel had accounts to access the new tool, but ZeroFox “had not yet set up the automated searches that [the Washington field office] relied on.” When asked about the timing of this transition by the Jan. 6 select committee, Moore described it as “beyond not the ideal time for this to occur, but in government contracting and contracting changes, you can’t predict the future and when that change is going to happen.” 

Just as with the changes in the USCP’s intelligence division, there’s no indication that the timing of the contract transition was an effort to sabotage the FBI’s readiness on Jan. 6. But as the staff report notes, “even if the FBI had not been anticipating widespread violence on January 6th … [it] was also in the midst of preparing for the Presidential Inauguration on January 20th, raising further concerns about FBI’s decision to migrate its contract for social media intelligence less than 3 weeks before a National Security Special Event.” 

In the majority staff report’s telling, there’s not a huge amount of interest in self-reflection within these agencies. “Agency officials provided candid assessments of what went wrong,” the report states—but, it notes dryly, “those assessments and recommendations were most often directed at their fellow agencies, rather than their own agencies’ shortcomings.” Justice Department officials blamed the Capitol Police. DHS officials blamed the Capitol Police. FBI leaders blamed “other intelligence agencies,” “local law enforcement,” and—yes—the Capitol Police. The Capitol Police, for its part, blamed the intelligence agencies.

The report’s frustration extends to agencies’ willingness to comply with HSGAC’s requests for information, underlining that

at various points throughout its investigation, the Committee encountered significant delays, incomplete responses, denied document requests (including documents required to be provided to the Committee under federal law), and refusals to make certain witnesses available to the Committee for interviews.

The apparent struggle by the committee to obtain all the information it sought in a timely fashion—even in a period of shared partisan control of the Senate and the White House, which we might expect would make agencies more cooperative with a congressional committee—feeds one of the report’s seven recommendations: that Congress “responsibly reassert Congressional oversight authorities over the executive branch.” As we’ve written elsewhere, the experience of the Jan. 6 select committee illustrated the promise of vigorous congressional investigations but also demonstrated the limited applicability of that panel’s model for oversight more generally. We share, then, the report’s call for Congress to “consider additional ways to ensure compliance with its investigations and oversight requests.” The effort to reach a full accounting for the Jan. 6 insurrection—and many other inquiries—would benefit. 

The report’s other recommendations focus on how agencies can reform their practices in interacting with one another and collecting and analyzing information. And Peters seems committed to pursuing this inquiry further. The report states that “[t]his Committee will continue to conduct oversight of FBI and I&A to ensure they address these identified failures and make necessary reforms.”

But it’s unclear how much political will exists to push for these changes, given how little attention broader intelligence failures in advance of Jan. 6 have received compared to Trump’s personal involvement in spurring on the attack. In his NBC interview, Peters drew a link between the 9/11 Commission’s investigation and the work of the majority staff in identifying the intelligence community’s “failure of imagination” before both attacks. Following 9/11, though, there existed interest across the political spectrum in pursuing intelligence reforms. Today, not only is there a lack of consensus that Trump supporters were wrong in attacking the Capitol—there is also an unwillingness among those who do condemn the insurrection to acknowledge the role of intelligence failures in addition to assigning blame to Trump. The majority staff report genuflects somewhat to the Jan. 6 committee on this issue, acknowledging near the report’s end that “as the House Select Committee’s report demonstrated, former President Trump was the primary cause of the insurrection.” This is essentially repeating language from the Jan. 6 report, which used this framing to argue—wrongly—that the government’s principal error was in not anticipating the actions of Trump himself. 

Still, the HSGAC report states, “[T]he fact remains that the federal agencies tasked with preventing domestic terrorism and disseminating intelligence—namely FBI and I&A—did not sound the alarm.” But is anyone listening to the alarm that Peters and the majority staff are raising now?