Government Oversight in the Wake of January 6th

On March 5th, 2021, the American University Legislation and Policy Brief hosted its annual Spring Symposium to discuss the 2020 election and its aftermath. The conversation of the first panel weaved through many overlapping issues that made the 2020 election one of the most unique and consequential in American history. The triumvirate of a once-in-a-century pandemic that forced millions to vote by mail or through in-person early voting, the murders of George Floyd, Ahmed Aubry, and Breonna Taylor which reignited an ongoing nationwide conversation about the role of police in our communities, and the polarizing presidency of Donald Trump led two-thirds of eligible voters to cast a ballot. This was the highest percentage of voter participation in over 100 years and resulted in the ousting of President Trump and the election of President Joe Biden.

Beginning before Election Day and continuing at least through January 6th, President Trump contended that the election was stolen by illegal votes. The President peddled false claims that voting machines were tampered with; election workers threw away ballots; politicians in Georgia did not review absentee ballots that were faulty; and that thousands of votes in Arizona were changed in favor of Biden. Despite the vigorous coverage by news outlets into the process of counting votes, and the fact that many of the elected officials tasked with administering the vote counting process in swing states like Georgia were Republicans, the President fed these lies to his supporters with increasing fervor. Believing the outgoing president’s claims, over 800 of his supporters overwhelmed security in the U.S. Capitol building on January 6th in an attempt to disrupt Congress as it certified the election results. The violent clash between security officials and the insurrectionists led to five deaths, including one Capitol Police officer who died from the injuries suffered at the hands of those invading the Capitol. The assault was one of the “worst days of injuries for law enforcement in the United States” since 9/11, with 138 officers being injured.

During this panel discussion, American University Washington College of Law Professor Larry Noble offered a sobering truth about the state of our democracy. While these events mark another chapter in what has been a tumultuous past twelve months, Professor Noble was more concerned with how this event will impact the United States in the future. Noble lamented that the United States had forever lost the ability to point to the peaceful transfer of power as evidence of the strength of our democracy—once a source of national pride and international envy. Noble worries we lost that claim when the insurrectionists entered the Capitol with the intent to disrupt the electoral process. Even though Joe Biden’s election was eventually certified, the violence that was fueled by lies about massive voter fraud in the 2020 election tested the constitutionally established institutions dedicated to the peaceful transfer of power.

More than just national embarrassments, the January 6th insurrectionists remain an ongoing threat to our national security. This threat will require oversight entities to continuously monitor government agencies and officials tasked with national security. In the wake of January 6th, investigative journalism has demonstrated that federal government agencies both failed to take threats of violence seriously and failed to respond on January 6th once the attack began. The Homeland Security and Government Affairs Committee (HSGAC) hosted two hearings to determine how officials failed on these two fronts. Chaired by Senator Gary Peters (D-MI), the committee wanted to ensure that the “January 6th attack” was a turning point in how the government investigated and responded to threats and acts of violence against our institutions. The first hearing was dedicated to investigating breakdowns in intelligence gathering, security preparations, and the delayed response by law enforcement as the attack ensued. The Committee received testimony from Robert Contee, Acting Chief, Metropolitan Police Department; Michael Stenger, former Senate Sergeant at Arms and Doorkeeper; Paul D. Irving, former House Sergeant at Arms; and Steven Sund, former Chief, U.S. Capitol Police. The second hearing met with federal security officials to examine “how our nation’s top law enforcement and intelligence agencies misjudged the likelihood of violence.” The Committee heard from “Melissa Smislova, Senior Official Performing the Duties of the Under Secretary, Office of Intelligence and Analysis, Department of Homeland Security; Jill Sanborn, Assistant Director, Counterterrorism Division, Federal Bureau of Investigation; Robert Salesses, Senior Official Performing the Duties of the Assistant Secretary of Defense, Homeland Defense and Global Security, Department of Defense; and Major General William J. Walker, Commanding General of the District of Columbia National Guard.”

These hearings are a good starting point, with multiple other House Committees continuing the investigations started by HSGAC, but it cannot be the end of the inquiry into what went wrong on January 6th.  The F.B.I Office of Inspector General must review why the agency failed to properly investigate violent groups like the Proud Boys who participated in the January 6th attack, as well as offer recommendations the agency could take to improve their effectiveness. House and Senate oversight committees like HSGAC must continue to hold investigative hearings with people who failed to protect the Capitol building and left officers like Brian Sicknick to fend for themselves. Finally, the Government Accountability Office (GAO), a non-partisan legislative oversight entity, can open an investigation regarding the systematic failures of leadership that led to the attempted insurrection; Several lawmakers have already called on GAO to conduct this report.  The power of oversight is not to place blame or point fingers, but to rehabilitate past errors and create solutions when systems break down. A failure to adequately investigate the response to the January 6th insurrection could lead to future riots and jeopardize the entire foundation of our government. While we have lost the ability to say we always honor the peaceful transfer of power, we can still protect future transfers of power from undergoing the violent collision that plagued the 2020 election certification process.