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A win for House panel on Capitol riot needs AG, GOP and John Q Public on board

Not quite halfway into its hearing schedule, the committee is aiming at some pretty lofty goalposts.

WASHINGTON (CN) — A Capitol Police officer recalled slipping in blood in what she described as a "war zone."

Donald Trump's handpicked former campaign manager, attorney general, and legal counsel all stated in never-before-seen footage how they told the then-president that his election fraud claims were a lie.

Addressing an audience that has had a year and a half to let some details of the insurrection slip to the back of its consciousness, the House select committee has leaned into the drama of the day in the first three of what will be seven hearings throughout the month of June that reveal the details of its investigation.

"They've done everything in really explicitly theatrical terms," Josh Chafetz, law professor at Georgetown Law School, said in an interview. "They've done a really good job with casting, in the sense that they focused a lot on using Republicans as witnesses — both in person and in video tapes of the previous testimony — so as to deflect any criticism that this is a partisan event. Likewise, they've let, in many ways, Liz Cheney be sort of the face of the committee."

After a nearly yearlong investigation and more than 1,000 witness interviews digging into the time before and during what was supposed to be a perfunctory hearing to certify Joe Biden's election win, the panel is waging a targeted campaign to rally public opinion and raise alarm about how the peaceful transition of American democratic power was nearly shattered.

The panel has argued that the events of Jan. 6 were not isolated occurrences, that Trump supporters did not coincidentally show up and breach the Capitol complex on the same day Congress was set to certify the Electoral College results in Biden's favor. Rather, they were egged on by Trump's dissemination of baseless claims that the election was stolen and that then-Vice President Mike Pence had the legal authority to stop the certification.

“Those who invaded our Capitol and battled law enforcement for hours were motivated by what President Trump had told them: that the election was stolen, and that he was the rightful president,” Representative Liz Cheney, one of two Republicans on the committee, said during the first hearing. "President Trump summoned the mob, assembled the mob and lit the flame of this attack."

Rep. Liz Cheney, R-Wyo., listens as the House select committee investigating the Jan. 6, 2021, attack on the Capitol holds a hearing at the Capitol in Washington on June 16, 2022. (AP Photo/J. Scott Applewhite, File)

Cheney minced no words in her speech that first day and made clear the committee's argument: The Jan. 6 insurrection happened because of corrupt pressure by then-President Trump.

“It struck me as if it was the opening statement to a jury in a criminal trial, as if they're laying out the case. And I don't think at the end of the day, the committee wants to end by saying, ‘Just put it in the record books, just put it in the history books.’ I think they're building a criminal prosecution case," election law expert David Schultz, a political science professor at Hamline University, said in an interview.

Through direct witness testimony and excerpts of depositions with former Trump and Pence aides, the committee has focused in particular on how Trump and conservative attorney John Eastman forged ahead with Eastman's legal theory that Pence had the power to subvert the Electoral College despite repeated pronouncements from various sources, including those in their own corner, that the election was legitimate and Eastman's theory was illegal.

Trump's former Attorney General William Barr, who resigned before Jan. 6, and former Deputy Attorney General Richard Donoghue, whose department conducted "dozens of investigations" into election integrity, said in recorded testimony that the election results were legitimate.

"They’ve done a good job so far, trying to make the argument that this wasn't just some sort of delusion that everyone around Trump was indulging him in, but rather that he was being told repeatedly that this was not right, and insisted on it anyway," Chafetz said.


Vice President Mike Pence’s attorney Greg Jacob testified in the hearing this past Thursday that Eastman doubted his own legal strategy and told Trump on Jan. 4, two days before the insurrection, that the legal attempt to get Pence to stop the Electoral College count would violate federal law.

A video of former President Donald Trump speaking is displayed as the House select committee investigating the Jan. 6 attack on the U.S. Capitol continues to reveal its findings of a year-long investigation, at the Capitol in Washington on June 13, 2022. (Mandel Ngan/Pool via AP)

"That was most damaging to my mind. That there is no question that Eastman said in front of Donald Trump that his plan would violate the Electoral Count Act of 1887. They specifically intended to violate that law," Brendan Beery, a constitutional law professor at Western Michigan University's Thomas M. Cooley Law School, said in an interview.

These details lay the groundwork for the legal argument that Trump and his allies acted corruptly and committed a crime by continuing to back the "Big Lie," but whether Trump or any of his allies face prosecution is up to Attorney General Merrick Garland at the Department of Justice.

“He has the bearing and the mentality of an appellate judge where he moves with extreme caution, very slowly, and that's not the role of the attorney general of the United States. He really does need to adjust his mindset. He is the chief law enforcement officer in the executive branch, and so he needs to start going after people — and not just the foot soldiers who attacked the Capitol, but the people who sent them there. And so, you know, I'm hopeful this moves the needle a little bit," Beery said.

Last week, the Department of Justice sent a letter to the select committee, seeking access to transcripts from its witness interviews to aid in the department's work.

“That obviously indicates that something is afoot. Something's going on over at DOJ,” Beery said.

While talk about criminal prosecution swirls over the revelations about the number of people inside and outside of the Trump White House who challenged and rejected the then-president's claims both on voter fraud and the vice president's authority, Schultz said the moral responsibility of those who stayed quiet about their disagreements with the president is getting lost.

“We're now starting to see all these people, and Barr is one of them, writing books now that he's no longer president saying, ‘Look at the horrible things that he did.’ Like you were there, folks, you enabled this behavior. You didn't take enough action." Schultz said. ”And so either you've got in this situation people who expressly, like Eastman and Giuliani, gave Trump advice and enabled. Or at least, part of what I'm going to call a passive conspiracy, to enable the president to do what he did in his whole presidency, including leading up to January 6. Some people understood the concept of a whistleblower, but an incredible number, including the president, didn't and many of those people enabled the president's behavior."

The hearings' emphasis on the goings-on in the White House has been notable because of the factual record being established and because of the unified message that the committee is conveying.

It's rare for a congressional hearing to be devoid of distraction or partisan pandering, but because Republicans refused to participate in a bipartisan commission investigating Jan. 6, the nine-member panel composed of seven Democrats and two Republicans was able to investigate the attack and plan the hearings as a unified body.

“The Republican leadership's decision to boycott this committee may well have been a serious mistake on their part," Chafetz said. "The committee's hearings are still getting quite a bit of attention, and the committee was very smart about putting Republicans front and center so as to deflect charges that it's purely partisan. But at the same time, there's nobody on the committee sort of dissenting or presenting counter witnesses or something like that."

Former Attorney General William Barr speaks during a video deposition to the House select committee investigating the Jan. 6 attack on the U.S. Capitol. The footage aired at a hearing on June 9, 2022. (House Select Committee via AP, File)

If there had been a more aggressively bipartisan commission, Chafetz said the public may not have gotten as broad and deep an investigation into the Trump White House.

“You could imagine that part of the deal would have been, ‘OK, we'll focus narrowly on the mob that breached the Capitol, we can all agree that that's bad. And the price of our cooperation will be you won't focus too much on the White House, Republicans.’ But once they boycotted the [committee]," Chafetz said, "they lost the ability to sort of try to strike a deal."

Representatives Cheney and Adam Kinzinger, the other Republican on the committee, have faced the wrath of their party for participating in the investigation.

Schultz said their participation in the hearings, which have heavily featured Republican officials rejecting the Big Lie, provides a platform for the committee to speak to members of the Republican Party who have not tied themselves inextricably to Trump.

“This is an effort to say, ‘We're still a Republican Party and can be a Republican Party after Trump,’ in much the same way that Howard Baker said 50 years ago that there is a Republican Party after Nixon," Schultz said.

As the committee forges ahead with the hearings, the next of which is set to dig into Trump's pressure campaign on state election officials, the committee is likely to emphasize the continued danger Trump's claims of election fraud pose to the midterms and 2024 presidential election — when he is posed to run, once again, for the presidency.

“Ultimately, what really matters is not what happened on Jan. 6. It's what we learned from Jan. 6, going forward to 2023 and 2024," Thomas Kahn, distinguished faculty fellow at the Center for Congressional and Presidential Studies at American University, said in an interview. "Because everything that happened on Jan. 6 and, as close as we came to losing our democracy, the forces are in place to replay the same act, but now they're going to do better. They will learn lessons. They know what they need to do. As close as they came, they're going to do it better and more effectively. And you know, we've been warned. We now know what is in store. And I think these hearings are going to broaden the knowledge and the number of people who understand that."

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