Best path to Jan. 6 accountability: A civil suit against Trump
The House Select Committee investigating the Jan. 6 attack is trying to assure accountability for those responsible for it. There is, however, a much better path to achieve that goal: The Justice Department should bring a civil suit against Donald Trump and others who promoted and participated in the violence, to recover the millions of dollars that the United States spent to repair the Capitol and to pay for the additional security needed to prevent a recurrence of the violence at the Inauguration.
On the congressional side, the House committee already has collected an enormous trove of information on the causes of the security breakdown and what Congress must do to prevent a recurrence. It simply does not need the testimony of Republican House members or former White House aides, let alone Vice President Mike Pence, to assure that the security breach will not happen again. If the committee concludes that existing law must be fixed so that there is no question of the limited role of the vice president and others in determining the outcome of a presidential election, there is nothing that any of the uncooperative witnesses would say that would change the outcome of the committee’s conclusions.
The real reason the committee wants to hear from these witnesses on the record is that it wants further evidence for its report assigning the blame for Jan. 6 to the former president and his supporters in Congress. But if that is their purpose, it is unlikely to succeed in court because “accountability” is not a proper legislative purpose, as the Supreme Court recently made clear in rebuffing the efforts of the House to obtain the tax returns of the former president. Even if the committee could overcome that hurdle, time is very much on the side of the unwilling, who may also have other constitutional defenses, such as the Speech and Debate Clause for House members, and executive privilege for senior White House aides. Legal defenses aside, there is almost no chance that the committee will obtain answers to its questions before the end of 2022, when the House majority may well change, which would likely lead to the end of the investigation.
The overriding problem for the committee is that its constitutional role is to legislate, not to try to hold wrongdoers accountable.
Even if determining accountability were a permissible job for the committee, will any neutral person be persuaded by a report assigning responsibility to Donald Trump and his allies from a committee composed of his political opponents and two renegade Republican members?
Of course, the committee can and should hold public hearings to disseminate the information that it has learned. It should also “call” as witnesses those House members and Trump staff who have refused to cooperate and then ask their empty chairs a few simple fact questions about their conversation with the former president about Jan. 6.
As much as I would like to see Donald Trump behind bars, the attorney general should reject any such effort to criminally charge the former president — because it’s far more likely to make Trump a martyr than obtain a conviction.
Instead, the DOJ should bring a civil action against Trump, Rudy Giuliani, and others who exhorted the mob before it moved on the Capitol. In doing so, the DOJ could join forces with the many private suits against Trump, as well as that by the D.C. attorney general on behalf of the city. It should then take the lead in discovery, where it would have the resources to gather all the relevant information and would encounter few, if any, legitimate objections by witnesses to testifying about the events of Jan. 6. And if there are the kinds of refusals that the House has encountered, the matter can be quickly brought before the judge who has the case, without having to seek criminal contempt, which was the committee’s only remedy against Steve Bannon.
The suit by the United States would not have to rely on a little-used and less-than-perfect-fitting civil rights statute used by the other plaintiffs. Instead, the attorney general could file a straightforward claim for trespass, much as one that any homeowner would have if a mob broke down their doors and marched in.
Finally, if it is accountability that is being sought, there could be nothing better than a final multi-million-dollar judgment in federal court against Donald Trump that he could appeal all the way to the Supreme Court, with his three appointees sitting in judgment on him. That would be the ultimate in accountability: Paying the bill.
Alan B. Morrison is an associate dean at the George Washington Law School where he teaches civil procedure and constitutional law.