Why It’s ‘Nearly Impossible’ For A Capitol Attack Commission To Operate Like The 9/11 One

Soon after the January 6 Capitol attack, lawmakers from both parties were eager to endorse establishing a commission to investigate the historic security meltdown. 

“We need a 9/11 commission to find out what happened and make sure it never happens again, and I want to make sure that the Capitol footprint can be better defended next time,” said Sen. Linsey Graham (R-SC) in January. 

But once House Speaker Nancy Pelosi (D-CA) formally proposed the commission, a small step toward nailing down the specifics of composition and scope, partisan bickering broke out. Republicans bristled at Pelosi’s suggestion of Republicans picking four commissioners to Democrats’ seven; some Democrats balked at Republicans getting any seats at all, given that many elected GOPers publicly supported the election conspiracy theory that led to the attack. 

While Pelosi indicated that she’d be flexible on the commissioner split, other central issues, like the scope of the commission’s probe, remain very much unresolved.

The contentiousness is a likely precursor to a commission very different from the much-lauded 9/11 one. Back then, former New Jersey Gov. Thomas Keane (R) and former Rep. Lee Hamilton (D-IN) headed up the commission in a resolutely bipartisan way. They did all their media hits jointly, even made it a rule not to hire staff who had worked for one side or the other during the most recent presidential campaigns. None of the commissioners were current office-holders, a decision made to appoint people freed from the immense pressure to toe the party line and win reelection. There were five Democrats and five Republicans on the commission.

The final report was a bestseller. Almost all the recommendations it made became law. It’s held up now as the gold standard for bipartisan commissions. 

Things are unlikely to go so smoothly this time. 

A key ingredient of the 9/11 commission was its bipartisanship, which lent its findings credibility. In 2021, an attempt at bipartisanship could have the opposite result, granting Republicans, still largely supportive of former President Trump, ample opportunity to undermine the commission. For one, they could appoint Trump loyalists who would refuse to find fault with the former president or his Republican allies, creating an automatic schism with the Democratic appointees who’d want to hold them accountable. They could also hijack the focus of the commission: Senate Majority Leader Mitch McConnell (R-KY) has already implied that if Democrats insist on expanding the scope of the investigation to include the lead-up to the attack, he’ll push a focus on supposed violence from left-wing groups. 

If Democrats, seeking to circumvent that sabotage, try to pick the Republican appointees themselves, the legislation to set up the commission might not pass in the Senate, where it can be filibustered. 

“Creating a bipartisan commission, getting the right people appointed, creating the culture to have it work, making recommendations that you’re nearly unanimous if not unanimous on and then getting these things passed into law is a near-impossible task today,” 9/11 commissioner Tim Roemer told TPM, adding that those conditions make it all the more crucial that a legitimate fact-finding mission commence.

Not Your Grandma’s GOP

For the 1/6 commission to be a true fact-finding mission addressing the question of accountability for the attack, congressional leaders McConnell and Kevin McCarthy (R-CA) would have to be willing to appoint commissioners comfortable enough to put blame on Trump and elected Republicans. To achieve the broad acceptance of the 9/11 report, those people, an endangered species in the Republican party, would somehow also have to have credibility with GOP constituents. 

“There are many, many Republicans who would not be shy in calling out folks who were responsible for fanning the flames of January 6,” said Jordan Tama, an associate professor at American University’s School of International Service who has written a book on commissions after crises. “The question is, would McConnell and McCarthy appoint those types of people?” 

If McConnell and McCarthy instead selected those of the MAGA persuasion, a bipartisan investigation of the events that led up to Jan. 6 would be dead on arrival. Or, at least, the commission’s work would have to be drastically narrowed to focus solely on questions of security, and other contributors to the attack that don’t so blatantly implicate Trump. 

Tama said he sees a way forward if the Republicans appoint a mix of firebrands and more old-school Republicans, that a report with bipartisan agreement — if not the unanimity of the 9/11 commission — could still have a far-reaching effect. 

That’s not to say that the 9/11 commission was immune from the buffeting winds of partisanship. A major question in that investigation centered on how responsible the George W. Bush administration was for not foreseeing the attack. 

The commissioners were never able to address the question in their bipartisan, commission-on-a-hill way, Tama said. Some wanted to call out the Bush administration for not doing enough to prevent the attack; others, he added, wanted to pin responsibility on the Clinton administration for not doing more to address the growing threat it knew Al-Qaeda posed.

“The 9/11 commission basically shelved questions of accountability,” Tama said. “The story itself details the shortcomings of both administrations,” he added, but the recommendations at the end focus much more on systemic failures and needed reforms than whose fault it was. 

“Democrats and Republicans could agree about that, but probably wouldn’t have been able to agree about statements that blamed particular, individual leaders,” he said.

Logistical Weapons

The accountability problem is already one Republicans are trying to skirt, by suggesting narrowing the probe to the security failures around the Capitol alone. That would mostly absolve Trump and the Republicans involved of their months of stoking the mob’s fury with the delusion that the election was stolen. McConnell has warned that if Democrats insist on the wider scope, Republicans will push a focus on left-wing violence, presumably including misleading and false claims about antifa and Black Lives Matter protesters. Some in the GOP have been trying to establish an equivalence between left-wing protesters in 2020 and the Capitol mob. In reality, antifa is more a philosophy than a cohesive group, and the Black Lives Matter protests were overwhelmingly peaceful.

If Republicans ultimately conclude that the commission would be a political liability, they could sink it. The legislation to set it up can be filibustered in the Senate. President Joe Biden could set up a commission unilaterally, though it’s unclear how much interest he’d have in establishing a probe that would be immediately dismissed as partisan from Republicans.

If a commission does come together — as of Friday evening, Pelosi’s office could offer TPM no updates on when legislation to set it up may be introduced — the result could end up looking more like the Financial Crisis Inquiry Commission of 2009. 

The partisan split on the commission was so bad that it ultimately issued a report and two dissenting statements: the report from the six commissioners appointed by Democrats, one dissent from three of the commissioners appointed by Republicans and yet another dissent from a Republican appointee who split off from the group.

Among other disputes, the Republicans had refused to use the words “Wall Street,” “shadow banking,” “interconnection” and “deregulation” in the final report.

While the report also became a bestseller and was heavily cited in law review articles, the partisan split made it easy for other partisans to, from their foxholes, criticize the other side instead of focusing on the areas of commonality. That squabbling blunted the report’s impact at the time.

Those with memories of kinder times, like the 9/11 Commission’s Roemer, are holding out hope for a sudden return to civility. 

“I’m hopeful, I’m optimistic,” he said. “Maybe my glasses are a little rose-colored these days, but you have to be to be an American.”