Below is my column in The Hill on the January 6th Committee hearings and how the Democrats undermined the legitimacy of their investigation by breaking the long tradition of bipartisan and balanced membership on such special committees. Many of us support the effort to release more information and evidence on what occurred on that day. However, Speaker Nancy Pelosi decided to forego even the pretense of a bipartisan and full inquiry.
Here is the column:
In 1924, Lord Gordon Hewart famously declared, “Justice should not only be done, but should manifestly and undoubtedly be seen to be done.” The lord chief justice of England, he believed that even a small allegation of possible bias by a court clerk meant justice was not seen to be done and, thus, was not done.
Lord Hewart’s quote came to mind while watching the opening night of the House’s Jan. 6 select committee public hearings. House Speaker Nancy Pelosi (D-Calif.) decided a year ago to break from tradition and blocked two Republican committee members selected by GOP leaders. In response, House Minority Leader Kevin McCarthy (R-Calif.) pulled his other committee nominees, and Pelosi then seated two staunchly anti-Trump Republicans — Reps. Liz Cheney (Wyoming) and Adam Kinzinger (Illinois).
Congress has a long history of bipartisan investigatory and select committees. Many were formed during deep political rifts — yet, for 230 years, Congress maintained the need for bipartisan membership. That was the case with the Watergate committees, the House Committee on Assassinations, the Special Committee to Investigate the National Defense Program, the House Select Committee to Investigate Covert Arms Transactions and other investigations. It would have been easy to stack the decks and limit the members by party on each of those committees, but past congressional leaders understood that the credibility of such investigations required balance, including opposing views.
Pelosi’s decision to gut that process was something of a signature muscle play. As a witness in the first Trump impeachment, I was highly critical of her insistence that the House would impeach before Christmas rather than conduct the traditional impeachment investigation with witnesses. Instead of building a more convincing case, Pelosi preferred to impeach with virtually no record, for a certain defeat in the Senate. In the second impeachment, she went one better: She held no hearing at all and pushed through the first “snap impeachment.”
The Jan. 6 committee was similarly stripped of any pretense. It was as subtle a political move as Pelosi’s ripping up President Trump’s State of the Union speech. Asked what she hoped to achieve from the committee on the first day of hearings, Pelosi tellingly referred to it as a “narrative.” It is the difference between seeing and simulating justice.
According to The New York Times, that narrative is meant to “recast the midterm message” and “give [Democrats] a platform for making a broader case about why they deserve to stay in power.” It was packaged with the help of a high-powered media figure brought in to help stage the event. Much of the media touted how the hearings would be “must-see TV” and would force voters “not to look away” from Trump’s “coup.” Countervailing evidence was edited out. Thus, Trump was shown calling for the protesters to “march” on the Capitol — but not his additional words to do so “peacefully.”
That withheld line from Trump would hardly have exonerated the former president. I publicly condemned Trump’s speech while it was being given, and I called for a bipartisan vote of censure over his responsibility in the Capitol riot. The new footage shown by the committee only magnified the revulsion many of us felt in watching this desecration of our Capitol and our constitutional process. However, such one-sided accounts rob these proceedings of a sense of authenticity and authority.
However, they deliver precisely what Pelosi demands: politics unburdened by process. Ironically, it is the very same dismissal of process and principle that is often attributed to Trump.
The shame is that it could have been so much more if the committee were balanced and allowed a broader scope of inquiry.
For example, the first two witnesses highlighted the ongoing controversy over the failure of Congress to adequately prepare for the riot despite repeated warnings from the executive branch. Capitol Police officer Caroline Edwards and Nick Quested, a British documentarian, both noted the shocking absence of sufficient officers around the Capitol. Quested described “hundreds” of Proud Boys marching on the Capitol and seeing a single officer at one barricade; Edwards described a handful of officers holding back hundreds of protesters. Critical anti-riot equipment was not distributed or was affirmatively withheld. Security objectives were ignored, and even Edwards said officers were quickly and easily overrun due to lack of support.
Four days before the riot, records indicate the Capitol allegedly was asked if it wanted to request National Guard troops but declined. Yet The Washington Post and PolitiFact have insisted this is false. It would be useful to get the full story on what decisions were made — but House leaders appear to have curtailed inquiries into the failure to properly staff or equip officers at the scene, to erect fencing, or to call for the National Guard after the riot erupted.
This first hearing looked like the uncontested opening statement in a persona non grata proceeding, a hearing designed to denounce or expel an individual. Much of the evidence was designed to show that Trump repeatedly was told that he lost the election and thus had no good faith basis to challenge the election’s certification.
Well, many of us said exactly that two years ago. Moreover, if the effort is to convict Trump of being a narcissistic or craven person, you hardly need a select committee to make that case to the Democratic base or to much of the rest of America.
Perhaps the most surprising element in the start of the hearings is the person who was portrayed as the guardian of democracy: former Attorney General William Barr. After Democrats called for Barr to be impeached or even criminally charged, he was shown repeatedly as holding the line against Trump’s claims and demands. For those of us who have defended Barr for years, it was a welcome but weird sight to behold.
There is considerable evidence that Trump’s people planned for a certification challenge, but that was always anticipated. Not long after the election, I wrote about that possibility in what I called the “Death Star strategy.” It is not a crime to plan such a challenge, even without good cause. Without any direct connection to organizing or supporting the ensuing violence, that would remain a moral — not a legal — failure.
Indeed, if opposing views were allowed, then Republicans likely would call for the testimony of committee Chairman Bennie Thompson (D-Miss.), who voted to challenge the certification of the 2004 results of President George W. Bush’s reelection; committee member Jamie Raskin (D-Md.) sought to challenge Trump’s certification in 2016. Both did so under the very law that Trump’s congressional supporters used in 2020. And Pelosi and Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) praised the challengeorganized by then-Sen. Barbara Boxer (D-Calif.) in 2004.
The difference, of course, is that while there were violent protests in 2016 in Washington, there was not a riot that breached the Capitol. Yet, given that history, it was more important than ever for House leaders to reinforce the credibility of this committee by adhering to the long-respected principle of bipartisan appointments.
But this is Speaker Pelosi’s — not Lord Hewart’s — “court,” where the only thing “manifestly and undoubtedly” guaranteed is politics, without the pretense of principle.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. Follow him on Twitter @JonathanTurley.