Summary: Creation of the Select Committee; Purposes.

Summary: Creation of the Select Committee; Purposes.

¶In the week after January 6th, House Republican Leader Kevin McCarthy initially supported legislation to create a bipartisan commission to investigate the January 6th attack on the United States Capitol, stating that “the President bears responsibility for Wednesday’s attack on Congress by mob rioters” and calling for creation of a “fact-finding commission.”⁷³⁵⁷³⁵ “U.S. House of Representatives Debate on Impeachment of President Trump,” C-SPAN, at 1:03:53 - 1:13:42, Jan. 13, 2021, available at https://www.c-span.org/video/?507879-4/debate-impeachment-president-trump; Tyler Moyer, “McCarthy: ‘President Bears Responsibility for Wednesday’s Attack’,” Bakersfield Now, (Jan. 13, 2021), available at https://bakersfieldnow.com/news/local/mccarthy-president-bears-responsibility-for-wednesdays-attack.Show full note Leader McCarthy repeated his support for a bipartisan commission during a press conference on January 21st: “The only way you will be able to answer these questions is through a bipartisan commission.”⁷³⁶⁷³⁶ “House Minority Leader Weekly Briefing.” C-SPAN, at 7:30 - 8:44, Jan. 21, 2021, available at https://www.c-span.org/video/?508185-1/minority-leader-mccarthy-backs-gop-conference-chair-liz-cheney; Rudy Talaka, “GOP Leader McCarthy Calls for Bipartisan Commission to Investigate Allegations of Members Helping Rioters,” Mediaite, (Jan. 21, 2021), available at https://www.mediaite.com/news/gop-leader-mccarthy-calls-for-bipartisan-commission-to-investigate-allegations-of-members-helping-rioters/; “Rep. McCarthy Calls for Bipartisan Commission to Probe Capitol Riot,” Newsmax, (Jan. 22, 2021), available at https://www.newsmax.com/politics/kevin-mccarthy-capitol-riot-boebert-probe/2021/01/21/id/1006648/.Show full note

¶On February 15th, House Speaker Nancy Pelosi announced in a letter to the House Democratic Caucus her intent to establish the type of independent commission McCarthy had supported, to “investigate and report on the facts and causes relating to the January 6, 2021 domestic terrorist attack upon the United States Capitol Complex.”⁷³⁷⁷³⁷ Clare Foran, Ryan Nobles, and Annie Grayer, ‘‘Pelosi Announces Plans for ‘9/11-Type Commission’ to Investigate Capitol Attack,” CNN, (Feb. 15, 2021), available at https://www.cnn.com/2021/02/15/politics/pelosi-capitol-attack-commission/index.html. A few days thereafter, Leader McCarthy provided the Speaker a wish list that mirrored “suggestions from the Co-Chairs of the 9/11 Commission” that he and House Republicans hoped would be included in the House’s legislation to establish the Commission.⁷³⁸⁷³⁸ “Letter to The Honorable Speaker Nancy Pelosi,” House Republican Leader Kevin McCarthy, (Feb. 22, 2021), available at https://www.speaker.gov/sites/speaker.house.gov/files/Sharp%20MX-4141_20210518_081238.pdf.

¶In particular, Leader McCarthy requested an equal ratio of Democratic and Republican nominations, equal subpoena power for the Democratic Chair and Republican Vice Chair of the Commission, and the exclusion of predetermined findings or outcomes that the Commission itself would produce. Closing his letter, Leader McCarthy quoted the 9/11 Commission Co-Chairs, writing that a “bipartisan independent investigation will earn credibility with the American public.”⁷³⁹⁷³⁹ “Letter to The Honorable Speaker Nancy Pelosi,” House Republican Leader Kevin McCarthy, (Feb. 22, 2021), available at https://www.speaker.gov/sites/speaker.house.gov/files/Sharp%20MX-4141_20210518_081238.pdf. He again repeated his confidence in achieving that goal.⁷⁴⁰⁷⁴⁰ “Letter to The Honorable Speaker Nancy Pelosi,” House Republican Leader Kevin McCarthy, (Feb. 22, 2021), available at https://www.speaker.gov/sites/speaker.house.gov/files/Sharp%20MX-4141_20210518_081238.pdf. In April 2021, Speaker Pelosi agreed to make the number of Republican and Democratic Members of the Commission equal, and to provide both parties with an equal say in subpoenas, as McCarthy had requested.⁷⁴¹⁷⁴¹ Ryan Nobles, Annie Grayer, and Jeremy Herb, “Pelosi Concedes to Even Partisan Split on 1/6 Commission in Effort to Jumpstart Talks,” CNN, (Apr. 20, 2021), available at https://www.cnn.com/2021/04/20/politics/nancy-pelosi-january-6-commission-talks/index.html; Ryan Nobles and Daniella Diaz, “Pelosi Makes Concession on Subpoenas for 9/11 Style Commission to Investigate Insurrection,” CNN, (Apr. 22, 2021), available at https://www.cnn.com/2021/04/22/politics/nancy-pelosi-911-style-commission-insurrection-subpoenas/index.html.Show full note

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¶In May 2021, House Homeland Security Committee Chairman Bennie G. Thompson began to negotiate more of the details for the Commission with his Republican counterpart, Ranking Member John Katko.⁷⁴²⁷⁴² John Bresnahan, Anna Palmer, and Jake Sherman, “Pelosi Taps Top Dem to Negotiate on Jan. 6 Commission,” Punchbowl News, (May 11, 2021), available at https://punchbowl.news/archive/punchbowl-news-am-5-11/. On May 14th, Chairman Thompson announced that he and Ranking Member Katko had reached an agreement on legislation to “form a bipartisan, independent Commission to investigate the January 6th domestic terrorism attack on the United States Capitol and recommend changes to further protect the Capitol, the citadel of our democracy.”⁷⁴³⁷⁴³ “Chairman Thompson Announces Bipartisan Agreement with Ranking Member Katko to Create Commission to Investigate the January 6 Attack on the Capitol,” House Committee on Homeland Security, (May 14, 2021), available at https://homeland.house.gov/news/press-releases/chairman-thompson-announces-bipartisan-agreement-with-ranking-member-katko-to-create-commission-to-investigate-the-january-6-attack-on-the-capitol.Show full note

¶On May 18th, the day before the House’s consideration of the Thompson-Katko agreement, Leader McCarthy released a statement in opposition to the legislation.⁷⁴⁴⁷⁴⁴ “McCarthy Statement on January 6 Commission Legislation,” House Republican Leader Kevin McCarthy, (May 18, 2021), available at https://www.republicanleader.gov/mccarthy-statement-on-january-6-commission-legislation/. Speaker Pelosi responded to that statement, saying: “Leader McCarthy won’t take yes for an answer.”⁷⁴⁵⁷⁴⁵ “Pelosi Statement on McCarthy Opposition to January 6th Commission,” Speaker of the House Nancy Pelosi, (May 18, 2021), available at https://www.speaker.gov/newsroom/51821. The Speaker referred to Leader McCarthy’s February 22nd letter where “he made three requests to be addressed in Democrats’ discussion draft.”⁷⁴⁶⁷⁴⁶ “Pelosi Statement on McCarthy Opposition to January 6th Commission,” Speaker of the House Nancy Pelosi, (May 18, 2021), available at https://www.speaker.gov/newsroom/51821; “Letter to The Honorable Speaker Nancy Pelosi,” House Republican Leader Kevin McCarthy, (Feb. 22, 2021), available at https://www.speaker.gov/sites/speaker.house.gov/files/Sharp%20MX-4141_20210518_081238.pdf. She noted that “every single one was granted by Democrats, yet he still says no.”⁷⁴⁷⁷⁴⁷ “Pelosi Statement on McCarthy Opposition to January 6th Commission,” Speaker of the House Nancy Pelosi, (May 18, 2021), available at https://www.speaker.gov/newsroom/51821.

¶In the days that followed, Republican Ranking Member Katko defended the bipartisan nature of the bill to create the Commission:

As I have called for since the days just after the attack, an independent, 9/11-style review is critical for removing the politics around January 6 and focusing solely on the facts and circumstances of the security breach at the Capitol, as well as other instances of violence relevant to such a review. Make no mistake about it, Mr. Thompson and I know this is about facts. It’s not partisan politics. We would have never gotten to this point if it was about partisan politics*.*⁷⁴⁸⁷⁴⁸ “U.S. House of Representatives House Session,” C-SPAN, at 4:12:23-4:12:55, May 19, 2021, available at https://www.c-span.org/video/?511820-2/houses-passes-bill-create-january-6-commission-252-175.

¶That evening, the House passed the legislation to establish a National Commission to Investigate the January 6th Attack on the United States Capitol Complex in a bipartisan fashion, with 35 Republicans joining 217 Democrats voting in favor and 175 Republicans voting against.⁷⁴⁹⁷⁴⁹ “Roll Call 154 | Bill Number: H. R. 3233,” Clerk of the U.S. House of Representatives, (May 19, 2021), available at https://clerk.house.gov/Votes/2021154?Page=1&Date=05%2F19%2F2021. In the days thereafter, however, only six Senate Republicans joined Senate Democrats in supporting the legislation, killing the bill in the Senate.⁷⁵⁰⁷⁵⁰ “Roll Call Vote 117th Congress - 1st Session,” Question: On the Cloture Motion (Motion to Invoke Cloture Re: Motion to Proceed to H.R. 3233), H.R. 3233 - 117th Congress (2021): National Commission to Investigate the January 6 Attack on the United States Capitol Complex Act, H.R.3233, 117th Cong. (2021), available at https://www.senate.gov/legislative/LIS/roll_call_votes/vote1171/vote_117_1_00218.htm.Show full note

¶On June 24th, Speaker Pelosi announced her intent to create a House select committee to investigate the attack.⁷⁵¹⁷⁵¹ “House Speaker Nancy Pelosi Announces Select Committee on the January 6th Insurrection,” C-SPAN, at 4:44-5:26, June 24, 2021, available at https://www.youtube.com/watch?v=guCcy9tUfn8. On June 25th, Leader McCarthy met with DC Metropolitan Police Officer Michael Fanone, who was seriously injured on January 6th.⁷⁵²⁷⁵² Manu Raju and Clare Foran, “Officer Injured in Capitol Riot asks McCarthy to Denounce GOP January 6 Conspiracies,” CNN, (June 25, 2021), available at https://www.cnn.com/2021/06/25/politics/michael-fanone-kevin-mccarthy-meeting/index.html. Officer Fanone pressed Leader McCarthy “for a commitment not to put obstructionists and the wrong people in that position.”⁷⁵³⁷⁵³ Manu Raju and Clare Foran, “Officer Injured in Capitol Riot asks McCarthy to Denounce GOP January 6 Conspiracies,” CNN, (June 25, 2021), available at https://www.cnn.com/2021/06/25/politics/michael-fanone-kevin-mccarthy-meeting/index.html.

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¶On June 30th, the House voted on H. Res. 503 to establish a 13-Member Select Committee to Investigate the January 6th Attack on the United States Capitol by a vote of 222 Yeas and 190 Nays with just two Republicans supporting the measure: Representative Liz Cheney and Representative Adam Kinzinger.⁷⁵⁴⁷⁵⁴ “Roll Call 197 | Bill Number: H. Res. 503,” Clerk of the U.S. House of Representatives, (June 30, 2021), available at https://clerk.house.gov/Votes/2021197. On July 1st, Speaker Pelosi named eight initial Members to the Select Committee, including one Republican: Representative Cheney.⁷⁵⁵⁷⁵⁵ “Pelosi Names Members to Select Committee to Investigate January 6th Attack on the U.S. Capitol,” House Speaker Nancy Pelosi, (July 1, 2021), available at https://www.speaker.gov/newsroom/7121-0.

¶On July 17th, Leader McCarthy proposed his selection of five members:

Representative Jim Jordan, Ranking Member of the House Judiciary Committee;

Representative Kelly Armstrong of North Dakota; House Energy and Commerce Committee;

Representative Troy Nehls, House Transportation & Infrastructure and Veterans’ Affairs Committees.

Representative Jim Banks, Armed Services, Veterans’ Affairs and Education and Labor Committees;

Representative Rodney Davis, Ranking Member of the Committee on House Administration.⁷⁵⁶⁷⁵⁶ “McCarthy Names House Republicans to Serve on Select Committees,” House Republican Leader Kevin McCarthy, (July 19, 2021), available at https://www.republicanleader.gov/mccarthy-names-house-republicans-to-serve-on-select-committees/.

¶Jordan was personally involved in the acts and circumstances of January 6th, and would be one of the targets of the investigation. By that point, Banks had made public statements indicating that he had already reached his own conclusions and had no intention of cooperating in any objective investigation of January 6th, proclaiming, for example, that the Select Committee was created “. . . solely to malign conservatives and to justify the Left’s authoritarian agenda.”⁷⁵⁷⁷⁵⁷ “McCarthy Taps Banks to Lead Republicans on Jan 6 Committee,” Congressman Jim Banks, (Jul. 19, 2021), available at https://banks.house.gov/news/documentsingle.aspx?DocumentID=1921.

¶On July 21st, Speaker Nancy Pelosi exercised her power under H. Res. 503 not to approve the appointments of Representatives Jordan or Banks, expressing “concern about statements made and actions taken by these Members” and “the impact their appointments may have on the integrity of the investigation.”⁷⁵⁸⁷⁵⁸ “Pelosi Statement on Republican Recommendations to Serve on the Select Committee to Investigate the January 6th Attack on the U.S. Capitol,” Speaker of the House Nancy Pelosi, (Jul. 21, 2021), available at https://www.speaker.gov/newsroom/72121-2. However, she also stated that she had informed Leader McCarthy “. . . that I was prepared to appoint Representatives Rodney Davis, Kelly Armstrong and Troy Nehls, and requested that he recommend two other Members.”⁷⁵⁹⁷⁵⁹ “Pelosi Statement on Republican Recommendations to Serve on the Select Committee to Investigate the January 6th Attack on the U.S. Capitol,” Speaker of the House Nancy Pelosi, (Jul. 21, 2021), available at https://www.speaker.gov/newsroom/72121-2.

¶In response, Leader McCarthy elected to remove all five of his Republican appointments, refusing to allow Representatives Armstrong, Davis and Nehls to participate on the Select Committee.⁷⁶⁰⁷⁶⁰ “McCarthy Statement about Pelosi’s Abuse of Power on January 6th Select Committee,” Republican Leader Kevin McCarthy, (July 21, 2021), available at https://republicanleader.house.gov/mccarthy-statement-about-pelosis-abuse-of-power-on-january-6th-select-committee/; “McCarthy Pulls Republicans from Jan. 6 Select Committee after Pelosi Rejects Picks,” Axios, (July 21, 2021), available at https://www.axios.com/2021/07/21/pelosi-jim-jordan-banks-select-committee.Show full note On July 26, 2021, Speaker Pelosi then appointed Republican Representative Adam Kinzinger.⁷⁶¹⁷⁶¹ “Pelosi Announces Appointment of Congressman Adam Kinzinger to Select Committee to Investigate the January 6th Attack on the U.S. Capitol,” House Speaker Nancy Pelosi, (July 25, 2021), available at https://www.speaker.gov/newsroom/72521; 167 Cong. Rec. H3885 (daily ed. July 26, 2021). In resisting the Committee’s subpoenas, certain litigants attempted to argue that the Select Committee’s composition violated House Rules or H. Res. 503, but those arguments failed in court.⁷⁶²⁷⁶² See, e.g., Eastman v. Thompson et al., No. 8:22-cv-99-DOC-DFM, 2022 U.S. Dist. LEXIS 25546, at *12-14 (C.D. Cal. Jan. 25, 2022); Memorandum Opinion, Republican National Committee v. Nancy Pelosi et al. https://storage.courtlistener.com/recap/gov.uscourts.dcd.241102/gov.uscourts.dcd.241102.33.0.pdf.

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