A Proposal for a Commission on the Capitol Siege

On Jan. 6, the U.S. Capitol was assaulted and occupied for the first time since 1814. Five people were killed, including Brian Sicknick, a Capitol Police officer who was beaten to death while attempting to repel the siege. The insurrectionists were ultimately unable to block the Congressional certification of Joseph Biden as president-elect and Kamala Harris as vice president-elect. However, the outcome could have been mass carnage on the floors of the Capitol. And it constituted an unprecedented breakdown of the most basic function of American democracy—the peaceful transfer of power from one president to the next.

Republican Reps. Rodney Davis, John Katko), and James Comer have introduced a bill that would establish a national bipartisan commission to investigate the Jan. 6 attack. The bill models the proposed body after the 9/11 Commission, an independent entity established by Congress and charged with understanding what went wrong and what should be done to prevent such attacks in the future. That commission uncovered critical facts, assessed root causes, brought bipartisan focus to an ongoing threat, and galvanized the nation.

We agree that a Jan. 6 Commission is needed. To be effective, however, the commission’s purpose and focus must be laid out with greater specificity than current proposals have offered. Here, we attempt to sketch out the justification for a commission as well as the mandate, major areas of inquiry, and legislative language that we believe are needed to guide this effort.

A note of caution: this proposal assumes that any insurrectionist activity occurring between now and the inauguration is handled without significant incident. If that assumption proves false, the need for an investigative commission will remain—indeed, it will be even greater—but the specifics of the mandate will likely need to be altered.

Accountability, healing, and national reconciliation are vital to restoring American democracy in the days ahead. These processes take different forms and occur in different forums ranging from criminal prosecution to political remedies and action in the private sector. Regardless of what other measures are taken, however, it is critical for the nation to conduct a systematic, thorough and bipartisan examination of this event to understand how it happened and how to prevent similar violent attacks on democratic processes in the future.

The commission’s mandate should not be limited only to uncovering what happened and making recommendations. It should also be tasked with collecting and preserving information about this unprecedented event for future generations of policymakers, scholars and citizens. The foundation of civics is shared narrative and history.

Specifically, the commission should be charged with:

1. Preparing a full and complete account of the circumstances surrounding the Jan. 6 siege of the United States Capitol, including the lead-up to the event and the response to it;
2. Providing recommendations to prevent future violent attacks for political purposes against American democratic institutions, including but not limited to its facilities and leaders;
3. Holding public hearings and issuing a public report to generate bipartisan support for and citizen awareness of ground truths regarding the Capitol siege, responses by relevant government agencies and other entities and individuals and the need for reforms; and
4. Creating a permanent government repository of relevant documents, online communications, imagery and video relating to the siege and the government’s response for future assessments, scholarship, education and policy.

Ten Major Areas of Inquiry

The Commission should address questions including, but not limited to, the following ten major areas of inquiry:

1. Intelligence warning: What intelligence, including but not limited to open-source intelligence, was collected, by whom, and what assessments were made about the prospects of violent extremist activity connected to overturning the legitimate results of the 2020 presidential election? What assessments were distributed to parties responsible for maintenance and oversight of Capitol security, including but not limited to the House and Senate Sergeant at Arms, the Washington D.C. chief of police, the mayor of Washington D.C., and the majority and minority leadership of the Senate and House of Representatives? When were these assessments and what was their content? How and to what extent, if any, was theCapitol siege connected to earlier threats and plots against the governor of Michigan and state and local election officials in other states? What lessons should have been learned from these or other “near misses”? Based on these lessons, who or what entity might have catalyzed additional and more timely action?
2. Involvement of U.S. governmental actors: What official or unofficial roles, if any, did U.S. actors from federal, state, and local agencies play in organizing, inciting, carrying out or participating in the siege or in obstructing emergency response? What was the scope and nature of their sympathy to the occupiers, if any? What impact or influence did their sympathy, if any, have on the events of Jan. 6 or the goals of the occupiers?
3. Involvement of foreign actors: How and to what extent, if any, did foreign governmental or non-governmental actors play in organizing, inciting or carrying out the siege? (To date, no evidence has been publicly reported to indicate that this is the case, but the possibility cannot be ruled out and therefore warrants some investigation.)
4. Law enforcement planning: How did the Capitol Police, Washington D.C. police, National Guard and other relevant agencies prepare for the protest of the Jan. 6congressional joint session to approve the 2020 electoral college results and the possibility of violence? What critical mistakes were made? By whom? Why? How did these plans compare to other instances of mass gatherings at the Capitol with the potential for violence? What resources, organizations, and communications should have been utilized to protect the U.S. Capitol from attack?
5. The siege itself: What is the specific timeline of events that unfolded on Jan. 6? Who was involved? What were their motives and objectives? What weaponry, equipment, and iconography did they bring? What were other possible outcomes (both more positive and more negative) and what key junctures and actions could have facilitated or averted them?
6. Crisis response: How did the Capitol Police, other security forces, and government organizations, including but not limited to the White House, respond to the siege? What actions, if any, taken by individuals in these organizations needlessly endangered lives and exacerbated the crisis? What actions, if any, taken by individuals in these organizations saved lives and prevented further harm? What accounts for the difference in response on Jan. 6 compared to other mass gatherings at the Capitol, including during the summer of 2020?
7. The role of administration officials in the incitement of violence and obstruction of emergency response.
8. The role of technology and media companies in the organization and incitement of violent activity at the siege and emergency response.
9. Accountability: Why did Capitol Police and the FBI allow participants in the siege to leave the Capitol without arrest? How were these participants investigated, by whom, and how effectively?
10. Corrective action: What changes in law, rules, regulation, or policy for both the executive and legislative branches are necessary to reduce the likelihood of future violent attacks for political purposes against American democratic institutions, facilities, and leaders? What would be the impact of such changes on privacy and civil liberties in the United States?

To the maximum extent possible, the information used by the Commission to undergird its analysis, findings, conclusions, and recommendations should be made available to the public. Only when the American public understands the events of Jan. 6 and how they came to pass will we be able to build a foundation for ensuring that similar events will not threaten American democracy again.

Below, we have sketched out proposed legislative language for the establishment of a commission along these lines, drawing on the legislation establishing the 9/11 Commission.

TITLE XX–NATIONAL COMMISSION ON THE SIEGE AND OCCUPATION OF U.S. CAPITOL

SEC. 1 ESTABLISHMENT OF COMMISSION.

There is established in the legislative branch the National Commission on the Siege and Occupation of the U.S. Capitol in the United States (in this title referred to as the “Commission”).

SEC. 2. PURPOSES.

The purposes of the Commission are to—

1. make a full and complete accounting of the circumstances surrounding the siege and occupation of the United States Capitol building on January 6, 2021, including the lead-up to the event and the response to it, and the extent of the United States’ preparedness for, and immediate response to, the siege and occupation;
2. hold public hearings and issue a public report to establish a set of facts regarding the 2021 Capitol siege, responses by relevant government agencies and other entities and individuals, and recommendations for reform;
3. ascertain, evaluate, and report on the evidence developed by all relevant governmental agencies regarding the facts and circumstances surrounding the siege and occupation;
4. create and/or identify the content for a permanent government repository of relevant documents, online communications, imagery and video relating to the siege and the government’s response for future assessments, scholarship, and policy; and
5. investigate and report to the President and Congress on its findings, conclusions, and recommendations for corrective actions that can be taken to prevent future violent attacks for political purposes against American democratic institutions, facilities, and leaders.

SEC. 3. COMPOSITION OF COMMISSION.

(a) Members.–The Commission shall be composed of 10 members, of whom–

1. 1 member shall be appointed by the President, who shall serve as chairman of the Commission;
2. 1 member shall be appointed by the leader of the Senate (majority or minority leader, as the case may be) of the Democratic Party, in consultation with the leader of the House of Representatives (majority or minority leader, as the case may be) of the Democratic Party, who shall serve as vice chairman of the Commission;
3. 2 members shall be appointed by the senior member of the Senate leadership of the Democratic Party;
4. 2 members shall be appointed by the senior member of the leadership of the House of Representatives of the Republican Party;
5. 2 members shall be appointed by the senior member of the Senate leadership of the Republican Party; and
6. 2 members shall be appointed by the senior member of the leadership of the House of Representatives of the Democratic Party.

(b) Qualifications; Initial Meeting.–

1. Political party affiliation.–Not more than 5 members of the Commission shall be from the same political party.
2. Nongovernmental appointees.–An individual appointed to the Commission may not be an officer or employee of the Federal Government or any State or local government.
3. Other qualifications.–It is the sense of Congress that individuals appointed to the Commission should be prominent United States citizens, with national recognition and significant depth of experience in such professions as governmental service, law enforcement, the armed services, law, public administration, intelligence gathering, commerce (including aviation matters), and foreign affairs.
4. Deadline for appointment.–All members of the Commission shall be appointed on or before XXXX.
5. Initial meeting.–The Commission shall meet and begin the operations of the Commission as soon as practicable.

(c) Quorum; Vacancies.–After its initial meeting, the Commission shall meet upon the call of the chairman or a majority of its members. Six members of the Commission shall constitute a quorum. Any vacancy in the Commission shall not affect its powers, but shall be filled in the same manner in which the original appointment was made.

SEC. 4. FUNCTIONS OF COMMISSION.

(a) In General.–The functions of the Commission are to–

1. conduct an investigation that—
   1. investigates relevant facts and circumstances relating to the siege and occupation of the U.S. Capitol on January 6, 2021, including any relevant legislation, Executive order, regulation, plan, policy, practice, or procedure and any speech or public representation of U.S. political leaders and their appointees; and
   2. may include relevant facts and circumstances relating to–
      1. intelligence agencies;
      2. federal, state, and local law enforcement agencies in the Washington DC area and across the United States;
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