The One Institution That Checked Trump

On Oct. 29, exactly a week before Election Day, Vice President Kamala Harris stood at the same spot where Donald Trump had rallied rioters to attack the U.S. Capitol on Jan. 6 and made the case that Trump was too dangerous for the American people to return to office. The former president “sent an armed mob to the United States Capitol to overturn the will of the people in a free and fair election,” Harris reminded rally attendees. 

In the days immediately after Jan. 6, it might have seemed impossible to imagine that the man responsible could once again mount a viable bid for the presidency. Trump, declared Senate Minority Leader Mitch McConnell (R-Ky.), was “practically and morally responsible for provoking the insurrection.” House Majority Leader Kevin McCarthy (R-Ca.) insisted, “The president bears responsibility for Wednesday’s attack on Congress by mob rioters.” Rapidly, though, the Republican Party once again assented to Trump’s de facto leadership of the party. He easily secured the Republican nomination—and he may well secure a second term. Even if he loses, the fact that he has been able to come so close to the nation’s highest office, after previously mounting an insurrection to illegally hold onto it, is a reflection of the profound failure of American institutions to meet the moment.

After the insurrection, the Senate had the option of convicting Trump in his impeachment trial and barring him from office, but folded. The Justice Department has diligently prosecuted more than a thousand rioters for breaking into the Capitol in an effort to help Trump unlawfully hold onto power, but prosecutors took two years to bring charges against Trump for his attempted coup—and that delay, in connection with intervention by the Supreme Court, has allowed the candidate to essentially run out the clock. The result is that Americans are voting without knowing whether a jury of Trump’s peers would find him guilty of conspiracy against the United States, and without receiving a satisfactory answer from the Supreme Court as to whether a man with a fifty-percent chance of becoming president is even eligible for that office under the Fourteenth Amendment.

But there’s one major exception to this story of institutional sclerosis: the House Jan. 6 Committee—and, more broadly, the U.S. House of Representatives.

Since Trump first became a viable candidate for the presidency, the last eight years have seen a great deal of self-reflection among the commentariat as to the nature of the current challenges to democracy. Often, both Trump’s allies and some of his critics portray institutional responses to his abuses as themselves anti-democratic in nature—a “deep state” organizing against an elected leader, or prosecutors overstretching the bounds of their authority out of conscious or sublimated political animus. But examining the work of the House Jan. 6 Committee and the House’s other efforts alongside the work of the other branches—and the Senate—reveals a different story. The more insulated from the popular will an institution is, the more it has struggled to check Trump or outright disclaimed any responsibility. It is the House—the most majoritarian chamber of the branch of government most directly and regularly responsible to the popular vote—that has done the most to push back against antidemocratic abuses. 

Voters themselves, and the institutions closest to them, have been the most effective force in rejecting authoritarianism in the United States. In understanding the stakes of this election, that’s worth keeping in mind as Americans head to the polls. 

The Jan. 6 committee, which began its work in July 2021 and published its final report in December 2022, released by far the most comprehensive overview of Trump’s culpability for the events of Jan. 6 and his efforts to unlawfully hold onto power in the preceding months. Through a series of highly choreographed hearings over the course of 2022, and eventually in a gargantuan 800-page report, the committee established Trump’s close involvement in engineering what amounted to a failed coup attempt. Trump was not a minor figure swept along in a spasm of upset on Jan. 6, but, as Rep. Stephanie Murphy (D-Fl.) said in the committee’s final hearing, the “central player” in a months-long quest to overturn the election. 

The panel established a definitive narrative of Jan. 6 and the preceding months—adding detail to broad strokes that had been previously known and unearthing new connections to sketch out the full scope of the Trump campaign’s effort to undermine the vote. In doing so, it helped reset the terms of a conversation that had become warped by attempts by Trump and his allies to rewrite the story of Jan. 6 in the popular imagination. It established a baseline truth about Jan. 6 against which other narratives could be measured. By the time that the committee wrapped up its work, it seemed newly possible that Trump might actually face indictment for his role in Jan. 6—something that was by no means certain when the hearings began. Indeed, when Special Counsel Jack Smith unveiled his indictment almost a year later, the story he told about Trump’s culpability closely mapped, though with a great deal more detail and precision, the material already released by the House investigators. 

The committee’s legacy has been highly visible in the developments of recent weeks—particularly in Harris’s choice to campaign with former Rep. Liz Cheney (R-Wy.), one of the most prominent faces of the committee, who lost her House seat to a Republican primary challenger because of her work on the Democratic-led panel. It’s also visible in Harris’s choice to speak at the Ellipse, which was attended, and protected, by some of the same law enforcement officers who were seriously injured in fighting on Jan. 6 and testified before the committee about their experiences. Trump, for his part, has the committee on the brain as well: over the last week, he’s accused Cheney of “treason” and called other members of the committee “guilty as hell.”

The committee’s influence is still making itself known in the legal space, as well. New court filings from Special Counsel Jack Smith released mid-October generated excitement among the press for their damning details about Trump’s role in Jan. 6—but in fact, the overwhelming majority of the material presented by Smith had already been made public thanks to the Jan. 6 Committee. Of the four appendices of evidence filed by Smith, transcripts from the committee’s interviews with witnesses make up the entirety of the unsealed material present in one full appendix.

In some instances, Smith was able to get a hold of material that eluded the committee’s investigators—such as seemingly securing testimony from Steve Bannon, who just wrapped up a prison sentence for criminal contempt of Congress for refusing to respond to subpoenas from the committee. That’s a reminder of the limitations of congressional investigatory authority and of the greater power of prosecutors armed with grand jury subpoenas. Both politically and legally, Congress is playing with a weaker hand when it comes to investigations: the legislature has fewer legal options than the special counsel’s office to do things like pierce invocations of executive privilege or ensure compliance with a subpoena, and potential witnesses tend to be more willing to risk the consequences of defying Congress than they are of defying a grand jury. But it’s also an indication of just how much the committee was able to achieve in the way of uncovering the truth of Jan. 6 while working on an extremely compressed timeframe—just 17 months—and without the prosecutorial resources available to the special counsel’s office. 

That success is all the more striking because of the struggles of other governing institutions to protect against Trump’s disregard of norms and disrespect of the rule of law, from the beginning of Trump’s presidency through the present day. And a close look at why these other institutions floundered suggests why the Jan. 6 Committee was able to succeed when they failed. 

The Mueller investigation, which ran from May 2017 through March 2019, repeatedly butted up against the expansive powers available to a shameless chief executive willing to abuse his authority to block an investigation into his own wrongdoing. Investigators never really figured out how to square the circle of pushing for accountability without extending beyond the limits of their own authority or risking being tarred as political. The result was an investigation that produced a compilation of abuses that should have been sufficient to mandate Trump’s impeachment and removal, but was unable to break through in a muddled and polarized media environment. 

Following Trump’s departure from office, the Justice Department investigation of his involvement in Jan. 6 was marked by similar caution. Attorney General Merrick Garland has received a great deal of criticism, not all of it earned, for not moving more quickly to bring criminal charges against Trump. Reporting from the New York Times indicates that Garland gave the go-ahead in March 2021 for a probe tracing the ultimate culpability for the riot at the Capitol, saying that investigators should push forward even if “the evidence leads to Trump.” Still, the investigation moved slowly—for some reasons out of the Justice Department’s control; some that remain puzzling; and some that appear to trace from the department’s unwillingness to move forward aggressively by focusing its work on Trump himself, despite reporting and public evidence of actions by the former president that would seem to provide a predicate for a more immediate investigation. As the Times reports, there’s reason to think that the Justice Department investigation was forced along in part by public pressure from the Jan. 6 committee itself. 

The goal, according to the Times, was to conduct the investigation by the book and avoid the appearance of politicization. But this methodical effort ended up allowing Trump to run out the clock—in significant part, the Times states, because Justice Department leadership did not anticipate that the clock was running at all. The idea that Trump would attempt another run for president, one former department official told the Times, was “simply inconceivable.”

All this produced a series of cascading delays that have resulted in the very real possibility that Trump will secure a second term without ever facing legal accountability for his efforts to unlawfully extend his sojourn in the White House the last time around. It was surely clear to Special Counsel Jack Smith that the litigation over presidential immunity risked running up against the impending election represented a deadline of sorts. Yet some within the Justice Department may interpret the department’s guidelines to bar a prosecutor from incorporating the concerns of the political calendar in his decision-making, as Jack Goldsmith has written. In his request that the Supreme Court take up the immunity question on an expedited schedule, Smith ended up hinting at the need for alacrity without outright explaining why. The Court was unimpressed. It instead chose to take up the case on a slower time frame that resulted in further delay, especially following its ruling establishing a broad presidential immunity from prosecution—a decision that itself seemed intentionally blinkered in its refusal to acknowledge the obvious political implications of delaying trial. 

The last four years have amply demonstrated that the existing norms of the legal system are not set up to deal with an antidemocratic threat posed by the person who leads the executive branch itself or who may soon lead it again. Even if the people within these institutions are working in good faith, how are they meant to address the magnitude of the threat without distorting the mission of the institution itself—especially in a media environment where the slightest misstep can be seized upon as a demonstration of political bias? These questions faced by the Justice Department and the courts are genuinely difficult ones, even if the answers those institutions have reached are—I would argue—often half-baked or outright wrongheaded. 

The House Jan. 6 Committee did not have to worry about this. It was an explicitly political body, constituted as part of a political branch of government. Here, I mean political distinct from partisan: a significant part of the committee’s power came from the fact that it was operating with two Republicans, Cheney and then-Rep. Adam Kinzinger (R-Ill.), working alongside the panel’s Democratic majority. But while all these representatives were on the same page when it came to the danger posed by Trump, they were able to frame their message in the language of politics, speaking directly to the public rather than to judges. They weren’t tempted to hold back in their criticism of Trump as a threat to democracy in the name of some larger institutional value of equanimity, because no such value existed. 

There was no need for the committee to dance around the fact that Donald Trump was in its crosshairs as the chief architect of Jan. 6: “There will come a day when Donald Trump is gone, but your dishonor will remain,” Cheney warned her fellow Republicans during the first of the committee’s summer 2022 blitz of hearings. It didn’t need to hide that it was racing to meet a December 2022 deadline before control of the House likely switched to the GOP; or that it needed to rethink the contours of what a congressional hearing might look like in order to communicate the gravity of its findings in a fashion that would break through a frenetic media environment. And as a result, the committee produced the most comprehensive and devastating account of Trump’s effort to disrupt the peaceful transition of power. 

For those of us who write and think about law, there is often a tendency to look down on the political jockeying of Congress as somehow grubbier or less serious than the high-minded legal considerations that govern the other branches. But the Jan. 6 Committee didn’t succeed in spite of its political nature—it succeeded because of it. 

This doesn’t mean that the committee made the right calls when the Justice Department and the courts failed. Rather, it means that the committee was able to achieve what it did in part because it didn’t have to navigate these same obstacles in the first place.

That dynamic became apparent almost as soon as the committee was constituted. Among House Minority Leader Kevin McCarthy’s picks for the panel were two far-right Republicans who had backed the efforts to contest the 2020 election results—a choice widely understood as an effort to undermine the committee’s investigation before it had even started. After Speaker of the House Nancy Pelosi rejected those selections, the kerfuffle resulted in McCarthy refusing to make any appointments to the panel, clearing the way for a committee that was able to act with unusual unity of purpose in the absence of a dissenting minority. 

The point is not that McCarthy’s calculus was shockingly bad—though it was—but rather that Pelosi was able to fight fire with fire by responding in an outright political manner to a political gambit on her opponent’s part. That kind of maneuver wasn’t available to Mueller, Garland, or Smith, who could not respond with equal and opposite force to Trump’s attacks without undermining their own legitimacy. 

The committee was also able to meet Trump on his own turf in terms of its media strategy. The Mueller investigation stumbled in part because the special counsel’s dense 400-page report could not cut through a news cycle expertly maneuvered by Trump and Attorney General Bill Barr to defuse the force of Mueller’s conclusions. Smith has made himself more of a media presence, but he, too, must speak primarily in court filings. The Jan. 6 Committee, in contrast, was able to think strategically about how to present its findings in a way that could break through—a project that resulted in the committee essentially reinventing the format of congressional hearings with tightly-choreographed presentations broadcast in primetime. At one point, 20 million viewers tuned in to watch a June 2022 hearing broadcast in primetime—far more than would typically tune in to a congressional hearing. “It seemed like there was a new communications consultant every single day,” Dean Jackson, who worked as a consultant on the committee, remembered when I spoke to him for an interview on the Lawfare Podcast. 

And, perhaps most crucially, the panel was also able to cut to the heart of the threat posed by Trump’s actions to the Constitution. As Benjamin Wittes and I have written, from the beginning, Trump’s presidency was marked by doubt as to the new chief executive’s ability to understand and abide by his oath to “preserve, protect, and defend the Constitution” and “take care that the laws be faithfully executed.” Such concerns are entirely outside the realm of criminal law. Robert Mueller’s constitutional analysis spoke elliptically to these questions, but prosecutors couldn’t directly address the fact of Trump’s profound unsuitedness to his office, his willingness to desecrate any constitutional restraint in service of his own personal advantage. To do so would have stretched well beyond their authority.

But the Jan. 6 Committee had a different role. It could cut right to the heart of those concerns. As I wrote with Tyler McBrien and Natalie Orpett in June 2022, examining how the committee had framed its slate of hearings:

The FBI cannot investigate adherence to oaths because they are not enforceable as codified law. A prosecutor cannot establish that an oath has been broken by proving certain legal elements beyond a reasonable doubt, and a judge cannot adjudicate it. … What the committee can do, though, is make a public case for Trump’s having broken his oath of office and his manifest inability to swear that oath honestly—in other words, for the inconsistency of his actions on Jan. 6 with the Constitution, and for his unfitness to hold positions of public trust.

None of this means that the Jan. 6 Committee was perfect. It largely ignored the disastrous failures of law enforcement and intelligence agencies in the lead-up to the insurrection in favor of telling a more focused story about Trump’s individual culpability. It inexplicably delayed passing transcripts of witness interviews to the Justice Department in a fashion that complicated the department’s ability to investigate Jan. 6. Thanks to a decades-long effort by the executive branch to chip away at the congressional subpoena power, It was limited, in a way that the Justice Department was not, in its ability to enforce subpoenas and obtain information shielded by invocations of executive privilege.

Still, the committee was able to push forward aggressively in holding Trump to account in a way that legal institutions weren’t. And the credit goes beyond the Jan. 6 Committee to the investigatory work done by the House more broadly, at least when under control of a party interested in checking Trump’s authoritarian excesses. During Trump’s first impeachment, the House Intelligence Committee conducted an astonishing amount of legwork in an extremely short amount of time to uncover the details of Trump’s effort to blackmail Ukraine into aiding his 2020 reelection campaign. The second impeachment, over Jan. 6, involved less investigation—and took place during an even more compressed timeframe—but House managers still presented a powerful case against Trump in the Senate. And the decision on the House’s part to impeach in the first place following the insurrection may well have deterred Trump from further wrongdoing in the period between Jan. 6 and Joe Biden’s inauguration. “We thought we were in danger and we had to keep him on the defensive,” Rep. Jamie Raskin (D-Md.), one of the impeachment managers, remembered in an interview on Lawfare’s podcast series The Aftermath, which covers efforts to seek accountability after Jan. 6. 

Focusing on the impeachments makes something else clear: this success story isn’t just about the House, but the House as compared to the Senate. The upper chamber, after all, failed to vote to disqualify and remove Trump during both impeachments. McConnell’s decision in January 2021 not to push for Trump’s disqualification for office during the impeachment vote stands as one of the most stunning political miscalculations of recent years. It was the chamber more distant from the voters and less majoritarian in terms of its own functioning that ultimately pulled its punches when it came to Trump.

Over the course of the Trump era, it’s become common to argue that the legal proceedings against Trump can’t possibly resolve the country’s struggles, because these are political rather than legal problems. I’ve even made that argument myself. The Jan. 6 Committee represents one answer to that challenge: All right, if the answer is politics, then politics is what we’ll engage in. 

Elections themselves are another answer. It was Democratic victories in the 2018 midterm elections, and then again in the 2020 general election, that made possible the two impeachments and the Jan. 6 committee. When American institutions have buckled under the weight of authoritarian encroachment, voters themselves have—so far—been the most consistent force opposing it in the years since 2016. If, however, Trump manages to secure four more years in the Oval Office, it’s unlikely that less majoritarian institutions would do much to counter him. Any pushback would be most likely to come from the people themselves or from the House, if under Democratic control—either in 2024 or after the 2026 midterms.

In 2020, the day before Election Day, I published an essay examining the struggles of the Mueller investigation in connection with the Republican Party’s unwillingness to check Trump’s abuses of power. What I wrote then remains just as true today:

Already, Trump’s intentions to abuse the presidency if he secures a second term are plain…. The last real check on a president whose party has no interest in constraining him is, of course, the voters.