Lawfare Daily: Jan. 6, 2025: Five Years of Congressional Action and Inaction

Summary

The Lawfare Podcast

Episode: Lawfare Daily: Jan. 6, 2025: Five Years of Congressional Action and Inaction
Date: January 6, 2026
Host: Natalie Orput (with Quinta Jurecic, Molly Reynolds, Eric Columbus)

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Episode Overview

On the five-year anniversary of January 6th, 2021, Lawfare’s editorial team reflects on Congress’s response to the attack on the Capitol—both its actions and notable inactions. The roundtable explores how legislative changes, security reforms, and investigations changed or failed to change the trajectory of congressional governance and American democracy. Personal recollections, legal nuance, and political analysis shape an insightful look at how January 6th’s memory is evolving, and what it bodes for the health of U.S. institutions.

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Key Discussion Points & Insights

1. The Events and Aftermath of January 6th

• Personal Recollections and Context (02:31–06:50)

  • Quinta Jurecic recalls the day as “violent and frightening,” emphasizing that it wasn’t just chaos but a moment of profound uncertainty and trauma within Congress.
    • “I think it’s really hard to communicate… just how violent and frightening it really was and how much uncertainty there was about what was happening, whether people were going to be safe...”—Quinta Jurecic (02:36)
  • The attack’s connection to Trump’s tweeted rally and the certification process is highlighted as the direct impetus.

• Immediate Security Response

  • Focus shifted almost instantly to why law enforcement struggled to respond rapidly and what Congress could do about it.

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2. Congressional Legislative Actions

a. Capitol Police Emergency Assistance Act (08:41–12:01)

• Molly Reynolds explains:

  • Congress passed this law in December 2021 to empower the Capitol Police Chief to request help from executive agencies during emergencies.
  • Required joint congressional oversight hearings for accountability.
  • Notable cultural shift toward more transparency from the Capitol Police since the attack.

• Cultural Change Example: Recruitment ads and increased public engagement by the Capitol Police.

b. Electoral Count Reform Act (ECRA) (13:33–24:59)

• Eric Columbus recalls prepping for Jan 6 as House General Counsel, expecting Trump to resist a peaceful transition.

  • “We identified January 6 as a date that mattered significantly because of…the Electoral Count Act of 1887, a pretty dry, boring statute...” (13:41)

• Molly Reynolds outlines ECRA’s Key Features:

  • Clarifies who submits elector slates and provides for expedited judicial review (19:33).
  • Codifies the VP's role as purely ministerial when counting electoral votes, closing “quasi-loopholes.”
  • Raises threshold to object to state slates from just two members to one-fifth of each chamber.
  • Addresses how state legislatures could, in theory, invalidate a state’s popular vote (19:33–21:45).

• Quinta Jurecic: The act’s passage was a “huge step” and somewhat successful because it bypassed major media or partisan conflict (22:37–24:59).

  • “Honestly, I wonder if part of that is simply because the Electoral Count Act is so boring and complicated... so if you tried to explain it to people, they would simply fall asleep.”

• Caveat: Electoral reforms can’t solve a fundamental refusal to accept electoral defeat.

  • “You can’t process or procedure your way out of what are fundamentally political process problems.”—Molly Reynolds (27:17)

c. Failures and Inaction: D.C. National Guard Reform (29:36–33:25)

• Quinta Jurecic: Despite clear problems on Jan 6, Congress did not transfer authority to deploy DC’s National Guard to the mayor.
  • “Everyone was kind of waiting for Trump himself to give the go-ahead, which he did not do... and this…created a four hour delay...” (29:36)
  • D.C. statehood, which would fix this, also amounted to little legislative progress.

d. Other Legislative Tail Effects

• Architect of the Capitol Appointment Reform (35:48)
  • Past architect’s absence and scandals led to changes in appointment policy for legislative branch officials.
• 'Senator Subpoena Windfall' (37:33)
  • A legislative rider allowed Senators to sue (and collect large damages) if their phone data was subpoenaed, a direct but little-noticed outgrowth of Jan 6 investigations.

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3. Congressional Investigation: The January 6th Committee (40:21–53:49)

• Origins and Unusual Unity

  • Born after a 9/11-style commission was deemed unworkable; intended to be bipartisan but ended up so only due to two anti-Trump Republicans (Liz Cheney, Adam Kinzinger).
  • Pelosi’s blocking of McCarthy’s more partisan picks created a committee “marching in lockstep.” (40:21)
    • “Perhaps precisely because of that, it’s a little hard to imagine how it might be reproduced in another setting, because I would hope…that no other House minority leader will be so stupid as to repeat Kevin McCarthy’s error, although you never know.”—Quinta Jurecic (44:14)

• Investigative & Presentation Innovations

  • Hired outside media professionals to make hearings more accessible and compelling—even “exciting.”
  • “They literally hired like a guy from Hollywood to work with them on it.”—Eric Columbus (45:10)
  • Key testimony included Cassidy Hutchinson, persuaded by Cheney, revealing Trump’s personal involvement at key moments.

• Lasting Impact

  • The 1/6 Committee set a new standard for investigative budgets and seriousness, now cited by lawmakers as a benchmark when demanding resources for other probes.
  • The “long arm” of the committee includes continued intra-party disputes among Republicans and ongoing “investigations of the investigation.”

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4. Legal Aftershocks: Congressional Powers Tested

a. Trump v. Thompson (Executive Privilege Case) (55:01–59:28)

• Decision: D.C. Circuit and Supreme Court sided with the committee and current President’s waiver of privilege over Trump’s objections as former President.
  • “The incumbent president’s determination should control over, in the general run of events over a former president...” —Eric Columbus (55:01)
  • The Supreme Court left open the crucial question of resolving privilege disputes between current and former presidents.
  • Congressional interests may outweigh privilege in ‘sufficiently powerful’ scenarios, but much remains unsettled.

b. Contempt of Congress & Enforcement Limits (60:19–63:09)

• Committee’s criminal contempt referrals for Bannon, Navarro, Meadows, Scavino yielded mixed results:
  • DOJ prosecuted Bannon and Navarro, but not Meadows or Scavino, reflecting executive hesitation on compelling top aides.
  • “Basically Meadows, even though you had united control of government…unable to compel testimony from Meadows and Scavino or force them to pay any consequences.”—Eric Columbus (62:24)
• Demonstrates ongoing weaknesses for congressional enforcement power.

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5. Lasting Institutional and Cultural Impacts on Congress (63:27–66:23)

• Immediate penalties for members who objected to certifying the election did occur (loss of bipartisan collaboration, fundraising hits), but have faded over time.
• Congress as an institution continues to grapple with memory, commemoration, and historical clarity about the attack:
  • Ongoing disputes about whether to display a commemorative plaque for officers who died.
  • “There are these real big questions about the long term consequences and how the institution remembers and commemorates what happened.”—Molly Reynolds (65:53)

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Notable Quotes & Memorable Moments

• “I think it’s really hard to communicate to people who were not in D.C. on that day just how violent and frightening it really was…”
  —Quinta Jurecic (02:36)

• “You can’t process or procedure your way out of what are fundamentally political process problems.”
  —Molly Reynolds (27:17)

• “Honestly, I wonder if part of that is simply because the Electoral Count Act is so boring and complicated…if you tried to explain it to people, they would simply fall asleep.”
  —Quinta Jurecic (23:46)

• “Perhaps precisely because of that, it’s a little hard to imagine how it might be reproduced in another setting, because I would hope…that no other House minority leader will be so stupid as to repeat Kevin McCarthy’s error, although you never know.”
  —Quinta Jurecic (44:14)

• “They literally hired like a guy from Hollywood to work with them on it.”
  —Eric Columbus (45:10)

• “The Supreme Court left for another day the question of what happens where there is a dispute between the incumbent and the former president.”
  —Eric Columbus (59:28)

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Timestamps for Major Sections

• Recap of January 6th and Its Immediate Impact: 02:31–06:50
• Capitol Police Emergency Assistance Act: 08:41–12:01
• Electoral Count Reform Act: 13:33–24:59
• Limits of Reform—National Guard Inaction: 29:36–33:25
• Additional Legislative Ripples: 35:48–39:43
• The January 6th Committee’s Formation & Methods: 40:21–49:42
• House Legal Battles and Subpoena Power: 53:49–63:09
• Long-Term Institutional Impacts: 63:27–66:23

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Tone and Style

The conversation is serious, analytical, occasionally wry or darkly humorous, but always grounded in expertise and concern for institutional integrity. The speakers balance legal, political, and personal perspectives, blending vivid firsthand memory with in-depth policy commentary.

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Conclusion

Five years on, January 6th’s legacy is both legislative and cultural—a series of successful yet incomplete reforms, a reminder of procedural and political limits, and an uncertain path for congressional memory and accountability. Congress’s response showcases both its capacity and its constraints when facing threats to American democracy.

Transcript

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[Molly Reynolds]

Many people would argue that lots of this wasn't actually necessary, that Mike Pence didn't have the authority to throw out a particular slate of electors and that sort of thing. But the members of Congress figured out how to go in and shore up some of this.

[Natalie Orput]

It's the LawFair Podcast. I'm Natalie Orput, executive editor of Lawfare, with my colleagues, current and former Lawfare senior editors Eric Columbus Quinta, Jurassic and Molly Reynolds.

[Eric Columbus]

Is Congress the right venue, the right decision maker to determine who actually won the election? Or do we need a Supreme Court that is more insulated from popular pressure to be the ultimate arbiter in a case where political actors try to thwart the popular will?

[Natalie Orput]

It's January 6, 2026, the five year anniversary of the day thousands of Trump supporters stormed the US Capitol to stop Congress from certifying the 2020 election of Joe Biden. Today we're looking back at what Congress has done since then, what it hasn't, and how we should understand the legacy of January 6th so far. So here we are, thinking back five years later. Quinta, as I recall, January 6th was a peaceful, loving protest of patriots. Is that correct?

[Quinta Jurecic]

Yes, that is exactly what happened. No, in all seriousness, it is very strange to think that January 6th was almost five years ago now, because in some ways it feels even more distant, and in some ways it feels so, so recent. I think it's really hard to communicate to people who were not in D.C. on that day just how violent and frightening it really was and how much uncertainty there was about what was happening, whether people were going to be safe, you know, what, what the end point was going to be. It's easy to forget, you know, why this happened in the first place. So, of course you know it. There's this gathering in D.C. because Trump sends out this tweet early on in that fall. January 6th, be there will be wild. But of course, the reason is that January 6th is the day when Congress is statutorily required to formally certify the electoral vote. That is why there is this big protest there. That is why Trump is holding a rally. That's why he's kind of trying to encourage the people at the rally to all go down to the Capitol together and perhaps convince Mike Pence not to play the role as president pro Trump of the Senate to certify the vote. And so what you see after this, this Trump speech is this movement toward the Capitol, which, where rally attendees start kind of moving to the Capitol itself and then begin to break in. And I think there's a real amount of uncertainty, which, again, is both hard to remember and hard to forget about just exactly what was going to happen. There is some really frightening testimony from members of Congress who were afraid for their lives, thinking that rioters were going to break into their offices, attack them, hurt them and their staff. I remember during the second Trump impeachment, there being testimony that members of, I believe, Pence's Secret Service team, security people who were, who were in the building preparing to, you know, call their families because they were worried that they were going to be killed. And so eventually, of course, the, the crowd does end up dispersing and leaving the Capitol, but only after hours and hours of sort of marauding around the building, breaking into the Senate chamber. Of course, there's the image of the QAnon Shaman sitting in the well, kind of presiding over the chamber. And by the time that the National Guard and sort of law enforcement support shows up, it's really already over and people are leaving. And then we kind of shift into this next stage of where all these people going and why aren't they arrested as they are leaving the building. To be completely honest, I still don't know if we've ever really gotten a clear answer to that. But the fact that there is this sort of burst of violence, this period of real and profound uncertainty, and then that just kind of peters out into, I think it's fair to say, total confusion about what is happening. You know, what's going on, what is law enforcement doing is very representative of the sort of simultaneous chaos and fear and real farcical element of that day, which, of course, ends hours later with Congress finally actually certifying the electoral vote, but only after a significant delay. And I think you can really see in that moment of certification, relief that they finally managed to do it. But again, you know, real fear and anxiety and trauma that I know. I'm sure Molly will talk about this, but is really still carried with people who work in Congress.

[Natalie Orput]

Thank you. And, you know, I'm glad we went through the background of all of this because, as you say, it feels both long ago and like it just happened. I think, especially for those of us in D.C. but also, if we think about it, just the nature of the day and what it represented and what it was trying to accomplish has really indelibly affected our politics. But we're talking today as part of this conversation, since you could spend a lifetime talking about the various ripple effects in all aspects of our governance and Society of January 6. We are here to focus in particular on Congress. So this is setting aside all of the questions of criminal accountability for the people who actually went into the Capitol building. It's setting aside all of the later trials of President Trump at the time, former President Trump. For those of you listening at home, we have done a lot, a lot, a lot of content on those things in lawfare. So feel free to go all the way down the January 6th rabbit hole on this fifth anniversary. But turning to Congress, I want to stay with this theme that I think is such an important one, Quinta, especially as the memory of January 6th has faded somewhat. That is really to emphasize how violent it was. We're going to talk about in first section here, I want to talk about Congress doing the things that Congress did that Congress does after January 6, which is to pass legislation. It's supposed to be, first and foremost a legislative body. So we're going to talk about what Congress did legislatively, and I want to start in that vein of remembering just how violent it was with the Capitol Police Emergency Assistance Act. So, Molly, can you tell us about that?

[Molly Reynolds]

Sure. So, as Quinta sort of mentioned in her recap of the events of the day, one of the many things that kind of went wrong on January 6 involved the ability of the security apparatus at the Capitol itself. So that's made up of the chief of the U.S. capitol Police and the sergeants at arms of the House and the Senate. The ability of that group of people to get assistance, additional law enforcement assistance to the Capitol in a timely fashion. And some of this relates to questions about who had the authority to request assistance within the Capitol. And then there's a second set of questions about who had to sign off on sending the assistance. And those questions are complicated by the fact that the District of Columbia is not a state and we don't have a governor who controls our National Guard. We'll get to that in a minute. But one of the things that Congress did do legislatively in the aftermath of January 6th was enact a piece of legislation known as the Capitol Police Emergency Assistance Act. And they did this in December of 2021, so before a full year was up, which basically allows the chief of the Capitol Police to request help from executive departments and executive agencies to sort of assist in some sort of emergency situation at the Capitol. And so the goal here, obviously, like everyone hopes that there's never another set of circumstances where we would see this kind of violent uprising at the Capitol, but or frankly, any number of other emergency situations would those happen. It's now easier for folks inside the Capitol to request the assistance that they need from folks outside the Capitol. It's also required, and I think this has been something kind of interesting to track. It required the Senate Rules Committee, which has jurisdiction over these issues on the Senate side, the House Committee and House Administration, to jointly conduct at least one oversight hearing of the U.S. capitol Police Board during each Congress. I actually think, and this is not a direct, necessarily legislative consequence, I actually think one thing that has happened in the five years since January 6th, we've actually seen much more transparency from the US Capitol Police. There have been any number of situations, some of them quite terrible, including ones that have involved kind of individualized acts of violence. In the intervening five years that we have seen, we've seen the Capitol Police be much more transparent than they would have been before January 6th. There are more notifications. There are press releases. They hold press conferences. And again, I don't know that this is a direct consequence of this legislation, but I do think it is an important development that we have seen in the intervening five years.

[Quinta Jurecic]

I will say I have since January 6th, I feel like in recent years started seeing a lot of recruitment ads for the Capitol Police where they look very, you know, cool and imposing in their uniforms on the sides of WMATA buses and so on. And so forth in D.C. i don't know how much of that is a direct follow on from January 6th, but it does seem to kind of go along with their increased prominence.

[Natalie Orput]

I have noticed about the Capitol Police that they are very nice about giving Capitol Police stickers to my daughter when we are riding by on our bicycle. No, it's such an important point that one of the things that could happen relatively quickly, and this makes sense intuitively, is that Congress would look at its own security and make changes in that respect. So there was we're going to be talking as a running theme here about Congress responding in some ways prospectively and in some ways looking backwards to try to understand what had happened. But I want to go back to another major legislative effort that came out of January 6th, which is, of course, the Electoral Count Reform Act. And that was really directed at the legal basis and the reason for which all of this happened on January 6th, which is the method by which the United States goes about actually having its elections. And I think January 6th really served as a civics lesson for the country where most people previously didn't really understand that the election actually isn't over first Tuesday of November. But Eric, I want to come to you to talk to us about what the act was, but sort of the run up to it and to situate the certification of the votes generally, because you were actually working in Congress at the time in the House General Counsel's office. So I think you have some really unique insights here.

[Eric Columbus]

Thanks, Natalie. Yeah, so I was at the time before my lawfare existence, I was working for the House Office of General Counsel, which basically reports to the speaker of the House, who at the time was Nancy Pelosi. And we, over the summer of 2020, began to realize that Trump was serious about not conceding if he lost the election, and that he would plan to try to everything possible to remain in power. And we identified January 6 as a date that mattered significantly because of the electoral was called the Electoral Count act of 1887, a pretty dry, boring statute that prescribes what happens after the election is over and how the electors of the Electoral College vote and when and where and what happens to their votes and what happens if there are disputes over the actual, proper, legitimate slate of electors sent by each state. And so we prepared for all sorts of scenarios. And after Biden won and won fairly decisively, it appeared on Election Day, it seemed that things were going to calm down and therefore there wasn't much need to prepare. But then things took a turn and as previously mentioned, Trump sent out a tweet telling everyone to come to the Capitol, come to D.C. rather, on January 6th through a big rally. I think you said, be there, it'll be wild. And we were prepared for all sorts of possibilities. Working with the, the House Parliamentarians office, working with the Speaker's office, we were prepared for the vice president to go rogue and to do all sorts of things that would lead to further chaos and the possibility that the House and the Senate might be at cross purposes and with the Vice President being the president of the Senate. And I was actually asked the night before by my boss, General Counsel Doug Letter, he said, eric, you want to come in next day, since you know so much about this stuff, come on the House floor with me. And I said, you know, Doug, wouldn't I be better off at home with my computer so we can communicate about stuff and look stuff up on the fly? And he said, yeah, sure, it makes sense. And that's how I avoided having to flee the House chamber wearing a gas mask, which at the time, people who were on the floor literally had no idea what the people right outside the House chamber who were literally trying to bang down, break down the doors had on them were capable of. And the House was set up for possibilities like this, but it was, I think, pretty scary for people who were there. And you also got to remember a lot of these members of the House are not in the. In the best of shape. There are a lot of people in their 80s who physically need to be escorted off the House floor in a way that takes some time. So it was a very harrowing time for the people who are on the floor, and of course, for the many more staffers who were off the floor in House buildings but weren't protected in the same way that the members were.

[Natalie Orput]

Thank you for that again. I mean, I suppose this is a personal mission of mine, but I do appreciate sort of reminding people the reality of what it looked like on the ground, because it was really harrowing and it was harrowing for people watching it live at home. I want to go back to some of what you were saying with respect to the electoral count and Mike Pence in particular, and the cross purposes that you all were concerned that the Senate and the House might be at. So, as an overarching matter, I'll just say quickly, the reason that Mike Pence was such a notable figure and so prominent in people's minds at the time is because there had been shopped around a legal theory later determined to be quite frivolous I think most people knew it was quite frivolous the whole time that the vice president serving as president of the Senate had the legal authority to reject the electoral count just as a procedural matter. And therefore, the notion was that if Vice President Pence could be pressured enough, he could unilaterally decide that the election couldn't be certified and either kick it back to the states to resolve theoretical problems or figure out some way to actually certify the election in favor of President Trump. This was only one of the legal machinations that was proposed at the time and part of why it all focused on the day of January 6 in the electoral count itself. But as we've previewed, the Congress did go later in the aftermath of January 6th and try to address some of those quasi loopholes or areas of vulnerability in this 1880s law to try to clarify so that these types of frivolous legal theories could not be deployed again. So, Molly, let me come to you. Can you just walk us through what was in this Electoral count reform Act?

[Molly Reynolds]

Yeah. So it had sort of four basic things that it did. So one was that it sought to make it easier to identify what would be a single conclusive slate of electors from each state. So it specified sort of who would submit the slate. It provided for expedited judicial review in the event that there was a dispute at the state level over what slate was the single conclusive slate. And then it made some sort of changes to the rules for. For counting the votes. On this point about the role of the vice president that we've just been talking about, it clarified. I think many people would have argued before the reforms to the Electoral Count act that it was already clear that the vice president's responsibility was what we have come to refer to as ministerial, which is to say that his job is to sort of take from the clerks a piece of paper and read what the piece of paper says, and then that's his job, that he has no discretion over saying this is or is not the correct slate of electors from a state, and no ability to throw out slates from the count. But the ECRA really clarified this. It also raised the thresholds for members to lodge an objection against a state slate of electors from the floor. It had previously been the case that you needed one House member and one senator for an objection to be lodged, at which point the two chambers would separate from the joint session, retire to their respective houses, and debate that objection. That's actually what was happening when there was the breach of the Capitol on January 6th. The House and the Senate were separate. They were debating an objection to, I believe, the counting of Arizona's electoral votes. And so now under the law, it requires one fifth of both chambers to, to lodge an objection. And then the last thing the, the law did was make a change to a different 19th century Federal law that might have been used to try and invalidate, might have been used by a state legislature to try to invalidate a state's popular vote. So these are the kinds of things that it, that it did. And I'll note that it was bipartisan, it took a gang of senators, I hate that term, but basically an informal group of members of the Senate from both parties, outside the traditional committee structure to come together on this proposal. But I think legislatively is the most consequential thing that Congress did after January 6th. And in some ways, many, again, many people would argue that lots of this wasn't actually necessary, that Mike Pence didn't have the authority to throw out a particular slate of electors and that sort of thing. But the members of Congress figured out how to go in and shore up some of this.

[Quinta Jurecic]

Just to underline what Molly is saying, I think it's really striking how much of a success this reform was given some of the failures that I think we're about to talk about shortly. I mean, this is really, this was a huge step. I think it really blocked off a lot of the points of failure that were at issue during January 6th. I mean, that doesn't mean that there aren't other points of failure. But January 6th made very clear that there were vulnerabilities in the system in ways that hadn't been obvious. And it remains very striking to me that a bipartisan group of senators was able to move this through. One of the things that I think is really interesting is that, at least in my understanding, ECRA passed in significant part because it did not get a lot of attention. This was not something that was covered as front page news. It was kind of slipped in at the very end of the year, at the very end of a session of Congress. No one made much of a big deal about it. I wouldn't want to go so far as to say there was like a conspiracy of silence around it. But I did get the impression at the time that there was this sort of sense an all sides of no, let's just keep it really dialed down. We don't want to make this a big issue. We don't want to make it partisan. We're not going to draw attention. We're just going to get it through. And I think that is interesting in part because it shows what was possible in an environment where, for a variety of reasons that are hard to replicate, an issue that could have become very partisan and linked to support for Trump was able to kind of slink through under the, under the radar. Honestly. I wonder if part of that is simply because the Electoral Count act is so boring and complicated that it is really hard to explain what it was, what the attempt to distort it was on January 6th, and what the reform does. And so if you tried to explain it to people, they would simply fall asleep. And so it didn't get coverage on cnn. Maybe the conclusion there is that more reforms of, you know, crucial issues for democracy should just be done in incredibly boring and complex ways. I don't know. But I do think that was key to its success.

[Eric Columbus]

So I agree with everything that Molly and Quinta have said. I would add, however, that it's ultimately impossible to prevent something like this from happening again. An election requires a winner and a loser and a legend. This has been said many times before, especially after January 6. But election requires a candidate who is willing to say that they lost. And if you do not have that, and if you have a Congress that is roughly half of whom support that person and for whatever reason are willing to support him, and in believing, or rather in saying that he did not lose, then there is the continuing risk of shenanigans. And if you have a system that requires a Congress to bless, formalize the winner. Bad actors will always be able to find a way to game it if they are sufficiently bad. And one question that is unresolved, I think, is what happens after January 6th and by January 6th, I mean literal future January 6th is because that is statutorily the day when this happens. If Congress is dead set on stealing the election, is there something after that? Is there a judicial role in determining whether the election has been stolen? And the Electoral Count Reform act does have allowed judicial rolls at various earlier points in the process, but it is silent as to what, if anything, happens after January 6th. And, you know, it's like it's not clear who the ultimate decider should be. Is it is Congress the right venue, the right decision maker to determine who actually won the election? Or do we need a Supreme Court that is more insulated from from popular pressure to be the ultimate arbiter in a case where political actors try to thwart the popular will?

[Molly Reynolds]

Yeah, I think this is a good reminder that, you know, and as listeners to the Lawfare podcast know I spend too much of my time thinking about congressional process and procedure. But you can't process your procedure your way out of what are fundamentally political process problems. And so, to Eric's point, you know, what happened with the ECRA is important. And we will also talk about some things that Congress failed to do that are also important to talk about. But ultimately, at the end of the day, if you have a future election, as Eric was saying, where one side does not accept the results of the election, congressional procedures, even better designed ones than the ones we designed in the 19th century, aren't going to solve that problem for you.

[Natalie Orput]

Yeah, I think it's such an important point, and I promise I will not spend the entire podcast log rolling lafaire's work. But we did publish several really interesting and quite distressing articles about why the Electoral Count Reform act could not accomplish everything and sort of speaking to Eric's problem about what exactly happens if something like this happens again. So, yes, those of you already partway down the rabbit hole, keep going. Okay, so yes, let's turn now to some of the things that didn't happen. And I think this first one is sort of an interesting one because it is simultaneously something that can be politicized, but also something quite, quite technical, which is the reason for which, as we were all sitting there watching TV and watching this incredible amount of violence and destruction at the US Capitol, and watching Capitol Police and members of the metropolitan police of D.C. getting pushed back by crowds, we were asking ourselves, why is the National Guard not there? Why have they not called in the National Guard? And it turns out there is a very boring and technical reason for that, but a very important one. And it was clear how necessary it would have been to have the National Guard. But yet this was a type of problem that was revealed in the day that Congress was not able to, quote, unquote, fix afterward. So, Quinta, maybe I'll come to you. Can you tell us this prospective legislation that did not come to pass that.

[Quinta Jurecic]

I have foretold, as you say, Natalie, D.C. is not a state. We do not have sovereign authority. And so because of that, the D.C. national Guard is the only National Guard unit that is not technically under control of the leader of the region itself. Even the National Guards of US Territories are actually under the control of the governor of those territories. So Guam, for example, D.C. not so much. The the mayor is not, I believe, involved in the chain of command at all. Instead, the president is playing the role that the state governor would normally play. And so what that means is that on January 6th, when the Capitol was under attack, it would have been very useful to have the Guard come in instead of the mayor being able to send in the Guard in the way that she was able to deploy the Metropolitan Police Department. Everyone was kind of waiting for Trump himself to give the go ahead, which he did not do. And again, I'll point to the really amazing work done by the January 6th committee that I think there's testimony in there about Trump basically watching television and watching the sort of TV coverage of the riot while people are trying to get him to respond. That is the period in which he could have called out the guard and chose not to. And this sort of very, very technical distinction creates this. I believe it's a four hour delay for calling out the Guard. So because of that, there, there is a very technical fix to this problem, which is to allow the, the D.C. mayor to play that role in calling out the Guard. It's batted around for a while. Eventually there was a move to kind of put that proposal into the National Defense Authorization act, and it seemed like it was going to go through and then suddenly vanished. And at least I had done some reporting at the time with Andrew Kent at Fordham about post Trump reforms where they stood, and neither of us could really figure out why it didn't go anywhere. I think my best guess at the time was simply that it recorded required some muscle for it to be pushed through. And the people who were pushing for it weren't able to convince enough folks or didn't have, you know, the needed to spend that political capital elsewhere. It wasn't top priority. And so it was. It never made it into the, the final version of the ndaa. And as a result, this system works the same way today, which is why today in D.C. trump is able to deploy the D.C. national Guard even against the wishes of local government. So I think this is kind of a unusually clear cut, let's say, example of kind of a reform that was on the table, ended up not getting through and then has immediate effects where you can literally see on the street in front of you if you walk around DC how it is that these troops are able to be there because this reform didn't go through. Now, I should also say, you know, D.C. statehood would also solve this problem, but given that that was obviously dead in the water pretty early in President Biden's term, I think this was sort of the next best thing. And unfortunately, it ended up dying in the water as well, so to speak.

[Natalie Orput]

Yeah, it's a bit of a catch 20 too, because I would say that had we had representation in Congress, someone may have been more interested in pushing through this change to the National Guard.

[Quinta Jurecic]

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[Natalie Orput]

Before we switch gears to talk about some of the backward looking things that Congress did, I think Molly and Eric, you both raised the very important point that there are some really long tails to some of the legislative efforts in Congress that were responsive to January 6th. So I know each of you has your own but Molly, maybe I'll start with you. Tell us about the legislative effort that no one is remembering or noticing as being connected to January 6th.

[Molly Reynolds]

Sure. So one of the things that came out after January 6th and was like in part due to things that happened on January 6th, and in part due to other things as well, was that Congress decided that it wanted to change the way that the architect of the Capitol was appointed. So there's a whole set of Legislative branch officers who, it turns out the appointment process has involved the president, despite the fact that these are legislative branch officials, including the architect, the Capitol. And when the architect of the person who had been the architect of the Capitol on January 6th came out, that there was other wrongdoing in which he had engaged, and also that he was not actually physically present at the capitol on the 6th. And just a whole host of reasons why Congress decided we don't actually want this person to be the architect of the Capitol anymore. It turns out they couldn't fire him. And so they passed a law that changed the appointment process for the architect of the Capitol. And so this is sort of, again, like, tangentially related to the sixth, but it's a live issue now. And gets back this question of how are officers of the Legislative branch appointed? In some number of days from when we are recording this, on December 18th, the Comptroller General's term will expire. The head of the Government Accountability Office, we will need a new Comptroller General, but that appointment process involves the president. So, again, this is just another example. This, for me, is an example of an issue that came up after January 6th, and we saw Congress take action on. And now there are questions about, like, will they come back and do the same thing again for other parts of the Legislative branch bureaucracy? But Eric also has a timely example of this, so I'll pass it over to him.

[Eric Columbus]

I think last month or so, as part of legislation to reopen the government, some senators slipped in language allowing them to sue if they receive a subpoena. If providers, phone providers receive a subpoena for some of their call data about phone numbers that they communicated with or the data of their staff, that this relates to an investigation that was eventually taken over by Jack Smith into January 6th and President Trump's role in it, in which they're looking at communications between the White House or other bad actors and. And senators. And the senators were kind of up in arms about that and included slip this language into a statute and the House later. One of the kind of the weird things that when Congress passes the legislation and then part of Congress then immediately tries to undo part of it. There was big uproar about this, because the idea that senators could obtain per statute, a minimum of $500,000 merely because their Data proved relevant to a criminal investigation didn't sit well with members of the House who for some reason were actually excluded from that. So the House passed language to passed a bill to overturn that. The Senate right now is sitting on it and not doing anything about it. And so this indirectly traces Back to, to January 6th. Oh, I should also add the language is retroactive in that it goes back to 2022 and therefore allows people, senators who were in fact subpoenaed by DOJ at the time to literally cash in on it and to continue with the flagging of pieces that Lawvere has written. Natalie published a piece on this earlier this month or actually last month, co authored with Mike Feinberg, which goes into this in great detail.

[Quinta Jurecic]

Thank you.

[Natalie Orput]

I didn't even have to promote my own work. Okay, so let's shift gears and talk about some of what Congress did in a non legislative capacity, which is of course brings front and center what I think has become most people's association with Congress's action in connection with January 6th, which was the much celebrated, much, much maligned January 6th committee. So Quinta, let me come to you first. Can you just give us some background, remind us what the January 6th committee was and what it was doing.

[Quinta Jurecic]

The committee emerged after it became clear that an independent Commission like the 911 Commission was not going to happen and that going the route of a select committee was more feasible, let's say, as a way forward. I think it's useful to note that although in the end there were only appointees selected by Democratic leadership, I say it that way because there were mostly Democrats, but two anti Trump Republicans as well on the committee. It was originally intended to be bipartisan like any select committee. And what happened was that I think has to be like a up there in the all time strategic errors by then House minority leader Kevin McCarthy, who chose, I think it's fair to say, intentionally inflammatory group of Republicans to sit on the committee, including Jim Jordan among them. You know, folks who had really gone hard on saying that January 6th was not that big a deal, that Trump did nothing wrong, who weren't interested in investigating it. And when Pelosi said that a few of them were unacceptable and that she wouldn't allow them on the panel, McCarthy simply pulled all of them and decided to not have any of his own appointees there. And what that ended up doing was creating this dynamic where certainly for the first time I can remember we had a congressional committee that was really marching in lockstep. You know, everyone was on the same page or if there were, there were differences, and we do know there were some strategic differences. They did an excellent job keeping them behind closed doors and presenting kind of a unified face, so that later on, after the investigatory phase of the committee's work had wrapped up and they began presenting their findings in a series of televised hearings and then a report, they were really able to speak with one voice in showing the evidence that they had found that indicated that January 6th was kind of the last stage of this long effort by Trump and those around him to overturn the election. And importantly, that Trump himself was personally involved in this. Really, from moment one, I will say that I had not expected to learn a lot new from the committee's work, because we all saw what happened on January 6. It was on television. Trump was live tweeting it. But the committee was really able to find new and pretty damning evidence about Trump's degree of personal involvement, including some evidence that reportedly the Justice Department, their investigators at the time, were not even aware of, and was able to present that to the public in a very sort of unified, choreographed way. And so Molly and I have written and spoken a lot about this and continue to think about it in the years since. It's really sort of a triumph of what a congressional committee can do when folks are all working together. Perhaps precisely because of that, it's a little hard to imagine how it might be reproduced in another setting, because I would hope at least, that no other House minority leader will be so stupid as to repeat Kevin McCarthy's error, although you never know. But it was very striking to me as a show of force, let's say, in terms of what a congressional investigation can look like.

[Natalie Orput]

Yeah, Eric, I want to hear your thoughts on the committee. I will shamelessly promote again here, though, some of our work on this, which was. This is even worse because I was the narrator here. But in the aftermath, which was our podcast, narrative podcast, looking at what the government did, including Congress, to respond to January 6, the 4th, 5th and 6th episodes of the first season, talk about this process of putting together the committee. And then what happened between the first and second January 6 committee hearings, which was a very long period of time when a lot was happening. So it's a pretty amazing story. And it had been fading from memory even by the time we produced it, and has faded much, much more so. But, Eric, you were there and you were watching, obviously, very closely and from the inside. So tell us, what do you have to say about the January 6th committee?

[Eric Columbus]

I was there. I was still working for the House General counsel. And we were the one role of the House General counsel is to represent congressional committees. And so we represented the, the January 6th committee in a lot of, rather in all of their litigation and also others people in the office worked with them on, on the subpoenas and just consulted with them really every step of the way. And it's, it was a great, just kind of an all star cast of both members and staff. I mean, they had just tremendous staff working for them. As you can imagine, it was not that hard to recruit for them, to recruit excellent staff members, given the mission. And I mean, I think that the committee did an excellent job at presenting information in a way that was accessible, perhaps even exciting to viewers who might not ordinarily tune in to a somewhat dry congressional hearing. And they hired, I mean, they literally hired like a guy from, from Hollywood to, to work with them on it. And I mean, I think they did a great, great job of that. They got, I mean, there was some, some of the testimony was somewhat dramatic, such as the aide, the White House aide whose name I'm blacking out on right now.

[Natalie Orput]

Cassidy Hutchinson.

[Eric Columbus]

Yes, Cassidy Hutchinson. Thank you, Natalie. Who testified in person about her experience with Trump and others in the run up January 6th. And the committee was able to do that only because it was bipartisan, because Liz Cheney basically personally persuaded her to come forward. And you had people who hated Trump but who agreed, who were ideologically of the old Republican Party and therefore able to convince some people to kind of come into the, you know, into the light, if you will, and do the right thing and talk about their experiences now. So the question is whether that is replicable. I don't think that you will see someone as stupid as make as poor a strategic choice as Stephen McCarthy did. But there are some examples of bipartisan hearings in the past in context where you have just like really bad things going on beyond party, some populist issues such as kind of attacking corporate malfeasance. You can imagine this type of bipartisan unity. And one question will be whether you will see future department, future committee chairs try to deploy kind of a, a convincing multimedia approach to try to boost public interest in hearings and whether that not whether or not that will succeed. There was talk among some people. I don't know if there's any internal talk, but there was certainly external talk about having the hearings like during prime time in the evening. And I have no idea whether that would have worked, but there certainly is room for Congress to experiment with how it attracts attention.

[Natalie Orput]

Yeah. And I just want to clarify one point for folks, because I think it goes to the overall thrust of this, which is that the January 6th committee represented a lot of things both in terms of what it was able to accomplish, what it represented in terms of bipartisan interests, all of the things you mentioned, but also structurally, because, of course, the role that you had that you were describing was that you had to represent the committee in court when it was being challenged, or various aspects of what it was doing were being challenged as inherently unlawful for one reason or another. So the creation of the committee, the different activities the committee was undertaking, none of that was obvious at the time. So there was very much a building the plane while flying it sort of phenomenon going on. And that brings me back to you, Molly, because it seems to me, and I know you've given us a ton of thought, that there's a lot that the January 6th committee represents in terms of what it shows about Congress as an institution and what is feasible and what is not.

[Molly Reynolds]

Yeah. So there's a couple of things, I'll say. So one gets to some of what Quinta was talking about and some of the writing on this, Quinta and I did together on this question of what made the committee successful and what are the ways in which that is not replicable in other investigations. And one specific point on here that we've seen sort of come up in interesting ways since the end of the January 6th committee is about the size of the committee's budget. So the January 6th committee had access to, for a congressional committee, a really significant amount of money, and it had access to a significant amount of money to do exactly one thing, which was investigate what happened on January 6th. And obviously that was a complicated endeavor. And we know also from sort of the Justice Department's prosecution of various individuals that, like, the amount of digital forensic evidence that needed to be processed was enormous. It required kind of technological capabilities that you don't see in a lot of other issues, because we're talking about, you know, many, many, many security cameras and lots and lots and lots of security footage and all that sort of thing. But it's been interesting to watch since the January 6th committee, that kind of idea that, like, what it means for Congress to be serious about investigating something, does that now mean it has to look like what the January 6th Committee did, particularly in terms of budgetary resources. So you've seen since Republicans retook control of the House a number of times where people like Jim Jordan, when he had his weaponization subcommittee at the end of the Biden administration say, you know, basically I want what the January 6th committee got, like however much money they got, I want that money, that much money to deploy in pursuit of this investigation, because that's now the standard for what it means to take something seriously investigatively in the House of Representatives. So be really interesting to see sort of what that looks like going forward. The other thing that I'll just say is that, so we had the January 6 committee. It ended when Democrats lost the majority in Congress. But the idea that the House of representatives is investigating January 6th has not died as an issue. It has sort of evolved as an interesting intra party issue for the Republican conference in the House. So in the last Congress there was basically they would refer to it as investigation of the investigators. That was happening within the Committee on House Administration, which is the committee in the House that sort of has most natural jurisdiction over some of these issues. It put out some reports under the direction of Barry Laudermilk. And then earlier this fall, in a development that, you know, some of us noted at the time, and then I really will admit to not knowing whether any of this has gone anywhere, the House actually authorized in September a new panel to investigate the event events of January 6th, again for Republicans, really focused on, in some ways investigating the investigation for a while. Republicans in Congress were also talking a lot about trying to figure out some of the unresolved questions around January 6, including the identity of the individual who placed the pipe bombs at the RNC and DNC headquarters. We now know that an individual has been arrested in conjunction with those crimes by the FBI. So that's less of a live issue for this ongoing investigation. But it's been sort of an interesting. It's not clear that every Republican in the conference still wants to be talking about this. It's clear that it's still a really important issue for some of them, but not for all of them. And so again, just as we look towards the future, there is this kind of long arm of the January 6th Committee beyond just what it actually taught us, what it taught the public about what happened that day, what it has preserved in the historical memory, both in terms of video footage, the actual repository of documents which now sits at the Government Printing Office. But there are these sort of interesting political follow on consequences.

[Natalie Orput]

Yeah, absolutely. Okay, I want to shift a little bit to something we went by which relates to how all of this implicates various aspects of Congress's legal authorities vis a vis the other branches. So we had a number of lawsuits going on at the time. All of which I'm sure have faded in most people's memory, like so many things we're talking about. But some of these really interesting and salient legal issues that were coming up at the time were things like executive privilege and the extent to which Congress could subpoena members of the executive branch, then former members of the executive branch, which the formerness of it actually had a significant piece to do with the legal question. So let's talk briefly about a couple of those cases and what they represented, about testing the parameters of what Congress was able to do and how that impacts things outside of the immediate question of Congress's response to January 6th. So, Eric, can I come to you first to talk about Trump v. Thompson?

[Eric Columbus]

Sure. So this was a case that I worked on along with others, of course. And the committee subpoenaed the National Archives for presidential records relating to January 6th. And Trump then sued the archivist and the January 6th committee under the Presidential Records act, asking the court to enjoin the archivist from giving documents to the committee. And he said that the committee had no authority to subpoena the materials and that even if he did, even if it did, executive privilege barred their release. The committee won in the District Court and in the D.C. circuit. And what was perceived to be the biggest issue is the scope of a former president's ability to assert executive privilege. And executive privilege is it's never been determined, never been conclusively determined to the extent to which it a former president can do that. The Presidential Records act seems to contemplate that a former president can do it because it discusses it. But logic would seem to dictate that the incumbent president is better equipped to determine whether or not the executive branch's interests are sufficiently powerful so as to prevent that executive branch material from being turned over to Congress or to or to anyone else for that matter. Now, so Trump tried to invoke executive privilege, but President Biden said no, refused the assert privilege, and directed the archivist to give the materials over to the committee. And the D.C. circuit said basically that the president's determination, the incumbent president's determination should control over, in the general run of events over a former president whose papers were involved. The D.C. circuit also said kind of in passing, that, well, even if Trump were the incumbent president, Congress's interests in this instance was so powerful that it should overcome the president's interest in asserting executive privilege. Trump sought a stay of that, or actually rather moved to enjoin in the, sought an injunction pending appeal in the Supreme Court. And the Supreme Court said no, and he lost. And we're kind of used now to Trump getting a injunctions or stays on appeal whenever he wants to. But back in 2021, I believe it was, it might have been 2022, when he was not president, that just was not the case. And the Supreme Court, I think, somewhat surprisingly, punted on the question of the extent to which a former president can assert executive privilege and instead relied on the somewhat drive by holding of the D.C. circuit that even if Trump were president, that Congress would. Congress's interest was so powerful that it would require disclosure of the materials, which is an interesting and I guess from the standpoint of Congress, a positive development in that it was the first time that Congress that the Supreme Court considered a executive privilege claim involving Congress. And I think over the vote, everyone except for Justice Thomas agreed that the material should be released.

[Natalie Orput]

Right. So the state of the law right now, just to clarify for people, is sort of a. If there is a confrontation between Congress that is subpoenaing something that it has obviously deemed by the fact of the subpoena to be important and necessary, it belongs to a former president, and that former president does not wish for it to be disclosed and wants to assert executive privilege, but the current president does want to have it disclosed and waives executive privilege. That we think there might be some sort of balancing test that could possibly happen, but we really don't know.

[Eric Columbus]

The Supreme Court said there's a balancing test between Congress and the presidency, irrespective of, of whether or not there's a dispute between the former president and the incumbent. The Supreme Court declined to address the question of how, of what happens where there is a dispute between the former president and the incumbent, basically saying, look, even if everyone's on the same page in the executive branch in resisting the subpoena, in other words, even if Trump were the incumbent, you apply a balancing test. And the Supreme Court left for another day the question of what happens where there is a dispute between the incumbent and the former president.

[Natalie Orput]

So, speaking of tests to Congress's authority, let's talk about some other litigation that happened around this same time which related to the question of contempt of Congress. And this was in the face of several members of the former president's inner circle who were resisting congressional subpoenas. Eric, tell us about that litigation involving Steve Bannon and. Well, actually involving a lot of different people. I'll let you take it.

[Eric Columbus]

There were numerous subpoena recipients who declined to play ball with the committee, and the committee chose to go after Four of them, Steve Bannon, Peter Navarro, Mark Meadows and Dan Scavino. Steve Bannon is a former White House staffer who was not in the White House at the time, but was very involved in coordinating with with the White House and very much rabble rouser. Peter Navarro was in the White House as kind of a trade official who thought he had roles in other matters but appeared not to have. Dan Scavino was a White House social media person very close to the President. Mark Meadows was the White House chief of staff. They were all referred for contempt of Congress because of their refusal to engage with the committee. Mark Meadows did in fact turn over some materials, but he successfully bogged down the committee in litigation over whether or not he could be compelled to testify and as did to some extent Scavino. And what this basically means, and it's kind of notable is Jonathan Schaub, a professor and friend of Lawfare has, has noted, is that basically Meadows, even though you had united control of the government, you had a Democratic presidency and a Democratic controlled Congress, they were unable to compel testimony from Meadows and Scavino or force them to pay any consequences. They all were referred for prosecution. The Department of Justice decided to prosecute only Bannon and Navarro because they felt that Meadows and Scavino had some type of valid executive privilege claim due to their proximity to the President and due to his instructions to them, which was not applicable in Navarro's case, even though Navarro insisted it was and not applicable to Bannon either.

[Natalie Orput]

Okay, so before we have to wrap, I want to talk and Molly, I'm going to come to you on this about sort of taking a step back, what all of this has meant for Congress as an institution, as a sort of body within the US Body politic.

[Molly Reynolds]

Yeah. So I mean, I think in some ways, obviously the whole. We started by revisiting the severity of the events themselves and we've talked about a series of other consequences. But I think there are important in important ways. These like cultural consequences for Congress are some of the longest lasting ones of what happened on January 6th. And here I'll shout out, I am a political scientist, I'll shout out some really excellent political science work that's been done since January 6th on things like did the members of Congress who voted for the objections to Arizona and Pennsylvania's electoral votes, did those Republicans suffer penalties of any kind for their. What I would say is anti small d Democratic behavior? And the answer is, at least in the short term, yes. So there's some work on the questions of you know, did they lose bipartisan collaborators by doing this again? At least in the short term, it seems like they did. Democrats were less willing to work with them in what was already a polarized and partisan chamber, but they suffered an additional penalty for this. There's also some evidence that in the short term they faced fundraising penalties, that they got less money, especially from large corporate political action committees, as a result of their behavior. But those effects importantly have faded over time. And I think and again, this sort of ties into where we started on this question of both seems like a long time ago and seems like not that long ago at all that this happened. But it is long enough ago that some of the consequences that we saw immediately have started to fade. And the last thing that I'll say is that it's kind of a live issue in the how do we commemorate what happened? As kind of a historical matter space. There is this ongoing dispute about whether in the US Capitol there will be displayed permanently a plaque that describes the events of the 6th and commemorates the law enforcement officers who died in conjunction with what happened on the 6th. This is required under law. So Congress passed a law saying that this plaque needed to be displayed. It is, as I understand it, finished but not on display. There is ongoing litigation from to law enforcement officers who were at the Capitol on January 6th to say that no, Congress does have to comply with the law and display this plaque that is meant to four visitors to the Capitol from now until forever commemorate what happened. And so I think again, as much as we feel like this both just happened and also was a long time ago, there are these real big questions about the long term consequences and how the institution remembers and commemorates what happened.

[Natalie Orput]

Yeah, I mean, I think that that's really a theme as we've talked about the fading memory of it and this very outstanding question of how are we going to remember it in the course of history, I think that's a great, if sobering place to leave it. So Molly Quinta and Eric, thank you so much for joining me.

[Quinta Jurecic]

Thank you.

[Eric Columbus]

Thanks.

[Molly Reynolds]

Thank you.

[Natalie Orput]

The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter at our website, lawfairmedia.org support. You'll also get access to special events and other content available only to our supporters. Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Allies, the Aftermath and Escalation. Our latest Lawfare Presents podcast series about the war in Ukraine. Check out our written [e-mail] the podcast is edited by Jen Patya and our audio engineer. This episode was Goat Rodeo. Our theme song is from Alibi Music. As always, thank you for listening.

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