Today’s Edition: Holding the line for democracy.

July 28, 2021

          The first day of the Select Committee’s investigation into the January 6th assault on the Capitol should inspire confidence in all who seek to preserve our democracy. The hearing was somber, dignified, and substantive as four officers described their experiences on January 6th. The hearing was devoid of the grandstanding and bad faith demagoguery that Jim Jordan and Jim Banks would have brought to the hearing if they had not been blocked by Speaker Pelosi. The hearing was a success on every level. By allowing the officers to describe the savagery and racism of the insurrectionists, the Committee animated the violence in a way that even bodycam video cannot. The room was silent as the four officers described being attacked. Officer Gonnell said, “I thought ‘This is how I will die—defending an entrance to the Capitol.” Officer Dunn told of repeated racial epithets hurled at Black officers by insurrectionists. Dunn testified,

           One woman in a pink “MAGA” shirt yelled, ‘You hear that, guys, this n****r voted for Joe Biden! Then the crowd, perhaps around twenty people, joined in, screaming ‘Boo! F*****g N****r!

          If you have not had the opportunity to see the powerful testimony of the officers, you can watch video highlights here. Dramatic new video footage of the assault shown during the hearing is here. A full transcript of the hearing is here.

          The hearing was also a success because of the steady leadership of Rep. Bennie Thompson and moving statements by Adam Schiff, Liz Cheney, and Adam Kinzinger. In an emotional statement, Representative Schiff said,

          [I]f we’re no longer committed to a peaceful transfer of power after our elections if our side doesn’t win, then God help us. If we deem elections illegitimate merely because they didn’t go our way rather than trying to do better the next time, God help us. And if we’re so driven by bigotry and hate that we attack our fellow citizens as traitors, if they’re born in another country or they don’t look like us, then God help us

          GOP Rep. Liz Cheney’s opening statement must have sent shudders down the missing spines of Donald Trump and Kevin McCarthy. Cheney said,

          We must also know what happened every minute of that day in the White House, every phone call, every conversation, every meeting leading up to, during and after the attack. Honorable men and women have an obligation to step forward. If those responsible are not held accountable and if Congress does not act responsibly, this will remain a cancer on our Constitutional Republic, undermining the peaceful transfer of power at the heart of our democratic system.

          GOP Rep. Adam Kinzinger expressed his disappointment that “many in my party have treated this as just another partisan fight. It’s toxic.” He addressed the four officers directly, saying,

          I think it’s important to tell you right now though, you guys may individually feel a little broken . . . you guys won. You guys held.

          In the most important moment of the hearing, Chairman Bennie Thompson asked the officers what they wanted from the Committee. Officer Fanone gave an answer that put Trump and GOP members of Congress squarely at the center of the investigation. He said,

          What I am looking for is an investigation into those actions [of the President and Congress] . . .  and also whether there was collaboration between those members, their staff, and these terrorists.

          Officer Fanone’s articulation of the goal of the Committee was perfect. It identified the insurrectionists as “terrorists,” and it raised the question of whether Trump or members of Congress “collaborated” with those terrorists. Combined with Rep. Cheney’s demand to examine “every minute of that day in the White House, every phone call, every conversation, [and] every meeting,” the hearings represent an existential threat to Trump and his enablers. Fox News got that message loud and clear, running the following headline for its viewers: “Cops blame Trump, Republicans for allegedly inspiring and then downplaying Jan. 6 Capitol attack.” The report by Fox is factual and fair. It quotes officers Fanone, Dunn, and Gunnell at length. For once, Fox viewers will get the truth from a network that helped spark the January 6th attack. Good.

          The probability that the Committee will be able to examine “every phone call, every meeting” in the White House that day increased dramatically on Tuesday. In response to a request from the Committee, the Department of Justice has advised former Trump officials that they can testify before the Committee notwithstanding claims of executive privilege. See Politico, “DOJ: Former Trump officials can testify about Jan. 6 Capitol attack.” The decision by the DOJ means that if witnesses refuse to testify, the DOJ will not support their refusals in court—a change from the DOJ’s position under Bill Barr. Under Barr, the DOJ upheld claims of executive privilege during two impeachment hearings—a travesty. Let’s pause for a moment to give Attorney General Merrick Garland credit for making the right decision.

          The seriousness of the hearing today was a welcome change from the bomb-throwing obstructionism of the likes of Jim Jordan. By pulling all of his proposed appointments to the Committee, McCarthy may have inadvertently created the most bipartisan Committee possible. Having boycotted the Committee, McCarthy was left in the pathetic position of saying that he was “too busy” to watch the most dramatic testimony in Congress in fifty years. The Hill, “McCarthy, McConnell say they didn't watch Jan. 6 hearing.” McCarthy claims he was stuck in “back-to-back” meetings—none of which were as important as the meeting that was examining the worst attack on the Capitol in nearly two hundred years. McCarthy has misplayed his hand. See, e.g., the Fox News coverage of the hearing cited in the preceding paragraphs.

          As four officers were giving powerful testimony about the violent tactics of the insurrectionists, the leaders of the Sedition Caucus were holding a press conference to demand release of the “political prisoners” arrested for assaulting the Capitol. The press conference was held by Matt Gaetz, Paul Gosar, Louie Gohmert, and Marjorie Taylor Greene. Only a handful of reporters attended the conference, which was shut down by a single protestor with a whistle. See Talking Points Memo, “Gohmert, Gaetz, Greene Rushed Out Of Their Jan 6 Side Show By Protesters.” (“The publicity stunt appeared doomed from the start as an unidentified person in the crowd repeatedly blew a whistle as the GOP lawmakers took the podium.”)

          The first day of hearings on January 6th should give us hope. It should also make us angry. Hundreds of officers were savagely beaten by pro-Trump protestors trying to stop the count of the Electoral ballots, yet nearly every Republican in Congress is promoting the lie that the protestors were peaceful, or members of Antifa or Black Lives Matter. Former CBS anchor Dan Rather captured this righteous anger in his blog, Steady. Rather writes in part:

          We’ve been told that we need to understand those who believe these lies, that we need to find ways to reach out. . . . But I am also sick and tired of being lectured about the feelings of people who are so boisterously proud of their callousness to the feelings and safety of others. We are told by those that cheer on violence against police that we need to respect law enforcement more. . . Those who denounce “cancel culture” are eager to cancel anyone who doesn’t confirm their warped vision of reality — including such former Republican stalwarts as Liz Cheney.

          As I wrote yesterday, it is not helpful to tell someone “How to feel.” But is helpful to say that we should take those feelings of anger or disgust or anxiety and channel them into something that will make a difference. Be mad. Shout at the television. Scream into your pillow. Then get out there and out-compete the lunatics and clowns and traitors who want us to believe that Capitol insurrectionists are simultaneously “political prisoners” and members of Black Lives Matter. We can do that.

DOJ refuses to defend GOP Rep. Mo Brooks in January 6th lawsuit.

          Congressman Eric Swalwell sued Trump and Rep. Mo Brooks for inciting the January 6th insurrection and preventing members of Congress from performing their duties. Brooks claimed that his participation in the rally before the assault on the Capitol was privileged activity under the Westfall Act because his appearance was part of his official duties. Brooks asked the DOJ to certify that his activities were protected under the Westfall Act—which would have resulted in his dismissal from the lawsuit. On Tuesday, the DOJ filed a brief stating that Brooks was engaged in campaign activities at the January 6th rally, not official duties as a member of Congress. See NYTimes, “U.S. Declines to Defend Trump Ally in Lawsuit Over Jan. 6 Riot.” Thus, Brooks will remain in the lawsuit (for now).

          The DOJ’s refusal to support Brooks could be viewed as a departure from the DOJ’s prior expansive interpretation of the Westfall Act. Or it could be viewed as a straightforward decision that distinguishes between campaign activities and congressional duties. The decision by the DOJ will likely apply to Trump, who is also a defendant in the lawsuit.

          This is the second action by the DOJ that suggests that it will not impede efforts by Congress to investigate the January 6th insurrection. That’s good, but Congress doesn’t have the ability to indict Trump or Mo Brooks. The DOJ does.

Quick notes.

The Arizona election audit is falling apart at the seams. The liaison between the company performing the audit (“Cyber Ninjas”) and the Arizona Senate Republicans has just trashed the methodology and secrecy of the audit. See Talking Points Memo, Spokesperson For Arizona’s Sketchy Audit Unloads About Longstanding Problems.”

          In a special election in a Texas congressional vacancy created by the death of Republican Ron Wright, the Trump-backed candidate (Wright’s widow) lost to another Republican. See The Hill, “Jake Ellzey defeats Trump-backed candidate in Texas House runoff.” So much for Trump, the “kingmaker.” He is not invincible, and frequently backs extremist candidates who lose.

Concluding Thoughts.

           The Select Committee hearings will continue through 2022 and will be a long, hard slog. But the strong start on Tuesday demonstrated skillful leadership by Chairman Bennie Thompson. Rather than starting with endless speechifying, Thompson got to the substance immediately. And by starting with testimony from officers who defended the Capitol, Thompson effectively immunized the initial hearing from criticism by Republicans. Most importantly, it was the officers—not politicians—who voiced the demand to hold Trump accountable. On Tuesday, those officers spoke for the American people, just as they fought for the American people on January 6th. We are in their debt for holding the line against those who tried to overthrow the Constitution. They did their part; we must now do ours.  

          Talk to you tomorrow!