A matter of precedent: Objections over Jan. 6 investigation are purely political  

The Jan. 6 House Select Committee holds a business meeting on Wednesday, December 1, 2021 to consider Jeffrey Clark, a former Justice Department official in the Trump administration, in contempt of Congress.
Greg Nash

The House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol has been the subject of increasing criticism, both that it is proceeding too aggressively and not following congressional precedent of past investigations.

Critics cite the fact the United States House Select Committee on the January 6 Attack has interviewed more than 475 witnesses, issued more than 100 subpoenas and is considering whether to grant immunity to a number of key witnesses. They also allege that having a staff that includes former federal prosecutors somehow demonstrates an unseemly approach. One critic has even gone so far as to allege that the investigation is “a quantum leap for Congress in a way […] never seen before.”

The criticism is false and unfounded.

The record demonstrates that the Jan. 6 committee is well within the mainstream of prior investigations in both the House and Senate.

The most analogous precedent would be the select committee that investigated the Iran-Contra affair.

In January of 1987, the House launched an investigation into the most significant presidential scandal since Watergate. The chair of the select committee had full authority to issue subpoenas, compelling the production of documents and witnesses with the force of law. The committee, which, like today’s Jan. 6 committee, comprised many former federal prosecutors, issued hundreds of subpoenas, resulting in more than 300,000 documents, and interviewed more than 500 witnesses. The Iran-Contra committee also had its staff attorneys conduct some 250 depositions — testimony that is sworn under oath — and granted immunity to 26 witnesses.

The Iran-Contra investigation is not the only precedent, however. In 1988, the Senate launched a comprehensive investigation into corruption surrounding American Indian affairs. This committee issued 307 subpoenas compelling the production of documents related to the probe; its staff attorneys conducted 65 depositions, just as the Iran-Contra committee did. The Senate committee granted immunity to 26 witnesses in its investigation as well.

Critics of the Jan. 6 investigation point out that the House committee assigned to scrutinize the 2012 Benghazi attack issued “just a dozen or so” subpoenas. But that investigation followed a more standard model of congressional oversight, only conducting hearings on the executive branch — not the kind of wide-ranging and in-depth probe of the Iran-Contra committee or the Senate investigation of American Indian affairs. The current investigation of the Jan. 6 attack is of similar import, scale and complexity.

The record is clear. In hiring former federal prosecutors, subpoenaing documents and witnesses under legal compulsion and immunizing witnesses where necessary, the select committee is manifestly following congressional precedent in similar investigations.

The select committee is simply, but importantly, fulfilling its obligation to the Congress and the public.

Ken Ballen served as counsel to the House Iran-Contra Committee and chief counsel to the Senate Special Committee on Investigations of American Indian Affairs. He is also a former federal prosecutor.

Tags Congressional investigations congressional subpoenas Iran-Contra Jan. 6 select committee

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