On Thursday, in what was probably its final public hearing before the election, the House committee investigating the Jan. 6 attack on the Capitol revealed new details about former President Donald Trump. Those details included Secret Service records documenting his determination to join a mob he knew was armed and headed for violence.
The hearings have provided an indispensable record of an attempted coup that failed but that, as Representative Liz Cheney pointed out, threatens to recur. As the committee waits for the (unlikely) testimony of Mr. Trump, the torch now passes to other actors who hold the power to achieve accountability for the Jan. 6 attack on the Capitol — and to prevent another one from happening.
This task fits into three key areas.
Potential Disqualification
The added proof of Mr. Trump’s involvement in the events of Jan. 6 renews the question of whether elections officials and courts can disqualify him from holding public office under the Constitution. Section 3 of the 14th Amendment provides for the disqualification from office of any person who has “engaged in insurrection or rebellion against” the United States or who has “given aid or comfort to the enemies thereof.”
The prospect of Mr. Trump being disqualified may sound unlikely, but it is not fanciful — a New Mexico county commissioner who participated in the Jan. 6 insurrection was recently removed on just this basis.
On the question of whether Mr. Trump engaged in insurrection, the evidence presented throughout the hearings suggests that he knew the mob was armed when he riled them up on Jan. 6, wanted the magnetometers (metal detectors) to be taken down, expressed a wish to join the mob at the Capitol and then cheered the insurrectionists on while watching the violence on television. It also includes evidence referenced on Thursday that he singled out Vice President Mike Pence in a tweet after knowing of the violence underway.
It is also fair to ask whether Mr. Trump’s actions provided “aid and comfort” to insurrectionists. That prospect is reinforced by his failure to act for 187 minutes, despite pleas from advisers, while the mob ran rampant. Indeed, he offered repeated words of support that day to the mob, tweeting, when the mob finally began dispersing, “These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long.”
For disqualification, voters would start the process by filing petitions to keep Mr. Trump off the ballot; elected officials and courts would then act on them.
Disqualification under Section 3 involves several legal and factual challenges. For example, some say it would be better (or even necessary) to have enabling legislation passed by Congress. We strongly disagree, both because that’s not what the Constitution says and because courts have acted without such legislation over a period of more than 150 years. The committee should brush aside any legal misconceptions in its final report.
In its report, the committee also should highlight the proof supporting Mr. Trump’s disqualification, scouring its now vast archive of over 1,000 interviews and millions of pages of documents and data to lay out the evidence about Mr. Trump and anyone else who may face consequences under the 14th Amendment (including members of Congress).
A Road Map
The report could be modeled after the Watergate Road Map. That document laid out in painstaking detail the evidence of wrongdoing that an investigative body (there, a grand jury) had collected. It consisted of an inventory listing the evidence and then attached pieces of proof — whether it was a document, witness transcript or something else.
In that case a grand jury was sending evidence to the House. In this case, it is the House that would be making evidence available to others. But the principle is the same: The committee should compile all the relevant evidence upon which 14th Amendment decision makers can rely.
A similar road map may also be helpful to federal and state prosecutors. A formal criminal referral is less essential than laying out the relevant evidence for federal prosecutors to draw upon in their various investigations and for local ones like Fani Willis, the district attorney for Fulton County, Ga.
The committee’s evidence on Thursday suggesting potential obstruction of justice by members of the Secret Service and White House staff will also be in the hands of federal prosecutors to resolve. In one of the more notable moments of the hearing, Representative Adam Schiff stated that evidence strongly suggested “certain White House and Secret Service witnesses” had falsely testified that they were not aware of the risk of violence.
The committee’s report should also inform another group of regulators: bar officials. This was an attempted coup that utilized not tanks and guns but statutes and regulations, with lawyers playing a central role. Some bar associations have a practice of not opening investigations based on public complaints based on media reports. To break through that barrier, the committee should make formal disciplinary referrals accompanied by presentations of evidence.
The American People
One final handoff is perhaps most important of all: to voters. Well over 300 midterm candidates have embraced “the Big Lie” about the 2020 election being stolen. The committee has repeatedly warned of the danger this election-denial movement poses. As Ms. Cheney said on Thursday, “another Jan. 6 could happen again if we do not take necessary action to prevent it.”
But the test of the committee’s work and its political impact will not end with the midterms. Some “stop the steal” candidates will win their races, and the postelection season will quickly pivot to the 2024 election.
The baton is passing from the committee to others who have the power to take action on its work. That handoff is not only to election officials, prosecutors and judges. It is to all of us. Our democracy may well depend on what we do with it.
Norman Eisen served as special counsel to the House Judiciary Committee during the first impeachment of Donald Trump. Danielle Brian is the executive director of the Project on Government Oversight. E. Danya Perry is a former federal prosecutor and a New York State corruption investigator.
The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.
Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram.
Source: Elections - nytimes.com
