On May 27, 2022, Rep Debbie Wasserman-Shultz of Florida introduced a House Concurrent Resolution in Congress as follows:
“Finding that the January 6, 2021, attack on the United States Capitol Complex and the corresponding attempt to bypass constitutional order and obstruct through corrupt means the counting of certified electoral votes of the several States under section 15 of title 3, United States Code, on January 6, 2021, with intent to displace the lawfully elected President of the United States or thwart the will of the majority of electors, constitute an insurrection against the United States….” [Underlining added]
Are you OK with that so far? I am OK, in principle, that Congress attempts to register an insurrection. After all, they are the lawmakers and we do have a law against insurrection, which by the way, is precisely expressed in 18 USC 2382 as follows:
“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
I would quibble with Rep Wasserman-Schultz’s wording: “obstruct through corrupt means the counting of certified electoral votes … with intent to displace the lawfully elected President.” My quibble is that there is no “lawfully elected president” until after the two chambers, assembled jointly, have carried out all their January 6 work. But that’s a small correction of wording that could be fixed.
Also, though, I don’t feel right about her wishing to make a “finding” that what went on that day was indeed an insurrection, as this is something that all Americans need to have investigated and it hasn’t been done. (And you don’t want the investigation to be like that of the Warren Commission or the 9-11 Commission, right?)
The same resolution (which did not pass; it died in the Committee on Crime) said:
“and that any person who participated in the attack, or conspired or attempted to bypass constitutional order and obstruct through corrupt means the counting of certified electoral votes of the several States under section 15 of title 3, United States Code, on January 6, 2021, with intent to displace the lawfully elected President of the United States or thwart the will of the majority of electors, is deemed to have engaged in an insurrection in violation of section 3 of the 14th Amendment to the Constitution.”
Ah, that means that “the eyes of Texas” or in Rep Wasserman-Shultz’s case, the Eyes of Florida’s Congressional District 23, were on the 14th Amendment which says:
“No person shall … hold any office …who, having previously taken an oath … to support the Constitution of the United States… shall have engaged in insurrection or rebellion….”
(Ratified in 1868, referring to rebels of the Confederacy). In other words, this is an attempt to keep Trump out of the 2024 election. Cute.
How To Investigate?
Now let’s pretend that the 435 members of Congress have all set aside their Party badge and want to do what is right for America, no matter who may get blamed — assuming, of course, that any assigning of blame will be done lawfully.
Can they order an investigation? Yes. Congress can investigate anything that it has responsibility for. Like the House of Commons in England, the House of Reps is “the Grand Inquest.”
What about demanding a president to give testimony under oath? Yes, sure. Isn’t that disrespectful of the man himself? Of course not. We need to give great respect to our presidents (I personally do not approve of “Let’s go, Brandon”). But asking him to explain whether or not he incited a riot is too important to give way to etiquette.
It seems to me that Trump would not have incited a riot (much less incited anyone to physically assault Mike Pence). I have stated my reasons in the video below. I do think Trump — who was still president on January 6, 2021 — did not act fast enough to end the invasion. Even his son said so, on that very afternoon. But don’t listen to me; I have no special knowledge of the Jan 6 event. We need a proper investigation.
Let me dispose of some elements that confuse the issue about the propriety of the investigation.
- Did Nancy Pelosi break rules in appointing a select committee? Yes I believe she did and Ia lso believe it doesn’t matter. The House makes its own rules. If they get broken, the House can decide to foreswear any punishment. Surely 51% of the House would have let Nancy off the hook for that. Alternatively, the Rules Committee could come up quickly with a draft of a new Rule to cover any situation.
- Did the Republican majority leader Kevin McCarthy neglect his duty to participate in the selection of the GOP members for the Jan 6 select Committee? Yes, he did, but again it does not matter. His duty is to his Party and, for whatever reason, his Party did not object to his “recusal.”
- Is a president entitled to access all classified material? I think he is, but this does not seem relevant. Don’t mix this Jan 6 problem up with the Mar-a-lago raid, which is completely separate. (But both are probably games that Dems — or higher ups — are playing to get Trump discredited.)
- Can a president refuse to testify under oath? Well, he can try, by taking it to court. One imagines that Trump will go the court route in order to buy time till after the November 8 election.
- Is he likely to win in court? I don’t think any president would win the right to refuse to answer Congress’ questions under oath. There is a “precedent” but it is not a judicial president, just a customary one, from 2002. Namely both President Bush and his VP Dick Cheney gave unsworn testimony to the 911 Commission. (They were NOT ASKED to take an oath and risk perjury.)
- Does a president have legal immunity if he commits a crime? You’re joking.
- Can Congress punish a person who does not show up when subpoena’d. Yes, but as far as I know they don’t do it to fancy people. (The punishment would consist of referring the matter to the DoJ. You can see how Congress didn’t bother to refer Bill Barr, US Atty Gen (and thus head of the DOJ) when he ignored a subpoena.
- Can a president ask that his testimony be given in secret? Yes, there is no law against that. But in the current case, it is the Congress that has asked for the secrecy of Trump’s testimony. (One wonders why.) Trump himself told the New York Times that he “is considering attending the hearing on the proviso that it be publicized” — or words to that effect.
- Is there a principle in the Constitution that can be labelled Executive Privilege? I say no, and would like to be drawn on that.
- If the current Congress decides that Trump “did” the insurrection, do they have a means of punishing him? No. Congress has a means of punishing a president by impeachment. The House already tried that twice, but the Senate failed to convict. As for criminal punishment, that is not in Congress’s constitutional powers. It belongs to the Third Branch of government, the judiciary.
Long story short, Congress should do a proper investigation of the Invasion. (Please see my October 26, 2022 GraniteGrok article in support of the Oath Keepers.) Just think how much damage has been done to the life of ordinary citizens by their “learning” from the press that a president sent hoodlums to the Capitol to do mayhem.
As expressed in the video below, I wrote to the Grand Jury of Fulton County, Georgia, when it was considering an indictment of Trump for messing with the Georgia election. The Foreman did not sign the return post card, so I don’t know if it was seen.
Note: the content of my video is not identical to what I said in the letter to Fulton County, as I went off script as soon as I mentioned my dad in the polling booth of the 1950s. Also, I made an error in the video by saying that it was Rep Marjorie Greene who challenged the Arizona electoral ballots; no, she challenged Michigan. And the session of Congress continued till around 3am on January 7.
By the way, as far as I know, the New Hampshire legislature is entitled to open its own investigation of the Jan 6th Washington DC event.