We never needed a Jan. 6 Commission. We need a Nov. 3 Commission. This is why | Bruce Ledewitz

June 9, 2021 6:30 am

WASHINGTON, DC – JANUARY 06: A pro-Trump mob breaks into the U.S. Capitol on January 06, 2021 in Washington, DC. Congress held a joint session today to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump. A group of Republican senators said they would reject the Electoral College votes of several states unless Congress appointed a commission to audit the election results. (Photo by Win McNamee/Getty Images)

On May 28, Republicans in the U.S. Senate blocked the formation of an independent commission to study the events of Jan. 6.

Bruce Ledewitz (Capital-Star file)

That’s OK. We never needed that commission. We already know all we need to know about the insurrection.

What America needs, instead, is a national commission to study the 2020 presidential election. We need to convince millions of Americans that the election was not stolen from Donald Trump.

We can see how useless a Jan. 6 commission would have been from the questions that a New York Times story claimed may now go unanswered. The main issues raised concerns about why security preparations for the expected demonstration were so lax, and why the response to the attack on the Capitol was so delayed.

But we already know the answers. The officials involved were loath to break publicly with former President Donald Trump, and brand his supporters potential terrorists, even after the attack began.

The article also asked, What was Mr. Trump doing during the attack?

We already know that too. He was cheering the attackers on. It will never be known whether Trump seriously believed a crowd could force then-Vice President Mike Pence and the Congress to reject the certified electors and hand him the election.

He might just have been expressing frustration with the way the election turned out. But a commission would not answer that.

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The questions we do need answered include, for example, the degree of coordination among extremist groups on Jan. 6, will come out during the upcoming trials of the perpetrators.

As for questions concerning the killing of protestor Ashli Babbitt by the Capitol police, Americans now realize how important it is to investigate all uses of lethal force by the police. But we hardly need a national commission for that.

Republicans charge that the real motivation behind the proposed commission was to promote Trump bashing prior to the 2022 midterm elections. There is an element of truth to that charge.

The deeper concern with the failure to constitute a Jan. 6 Commission was expressed by writers such as Charles Blow, who fear that American democracy is slipping away.

He is right to be concerned about that. But the reason American democracy is slipping away is not the insurrection Jan. 6. It is the backdrop and instigation of that attack. Millions of Americans, perhaps a quarter of all voters, believe the 2020 presidential election was stolen.

And they believe this because Trump and other Republican leaders have relentlessly claimed that in 2020 there was fraud and election rigging.

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We need an independent commission to confront that lie, to investigate fairly and transparently every claim of fraud, every assertion of illegality, no matter how outlandish or unlikely.

Then we need a simple Congressional resolution that states, “Joe Biden was legitimately elected President; there was no steal.” The vote would be yes or no.

Let anyone with a doubt see that whole process unfold in the light of national publicity.

You will not have a democracy for long if 50 million Americans believe that Trump was actually reelected.

Even now, Republican legislators in swing states are preparing the legal groundwork for rejecting the next popular vote for president and substituting Republican electors instead. Their legal authority for doing so is dubious but untested.

No one should want the current U.S. Supreme Court to decide that issue in 2024.

These efforts would be impossible without the widespread belief among Republicans that the 2020 election was fraudulent and that democracy has already died.

There are several reasons why Democrats are not pressing for an independent commission to examine the 2020 election.

First, Democrats do not want to do anything that might cast doubt on the legitimacy of Biden’s election. It is Republican state legislators, as in Pennsylvania, who have been conducting investigations into claims of election fraud.

But this concern misses the point: none of these investigations have uncovered fraud or illegality. It is true that Republicans have proposed new election laws to combat alleged fraud, but their actions have been taken in bad faith after their own investigations have failed to find anything wrong. An independent, national commission would make that clear.

Second, Democrats assume that such a commission would be useless because you cannot convince these people. This is the Hillary Clinton “basket of deplorables” syndrome.

It is not necessary to convince everyone. To eliminate the myth of the stolen election it is only necessary to confront and undermine that lie in a serious and open way.

Democrats have a hard time understanding that many of the demonstrators on Jan. 6 were sincere in their belief that the Presidential election had been stolen. Democrats like to think the demonstrator were just a white nationalist mob.

Some number of Americans who have doubts about the 2020 election would be open to the conclusions of an independent investigation. No one knows how many. But certainly that number is higher than without a commission.

Finally, Democrats are afraid that some Republican complaints about the 2020 election might have merit. In 2020, there were judicial decisions that stretched, if not broke, standing election law. There were instances of inconsistent guidance from election officials. There were inconsistencies in ballot counting and in the treatment of mail-in votes.

None of this amounted to illegality and none of it changed the result of the presidential election. In fact, the 2020 election probably had less of this kind of thing than many previous national elections.

Nevertheless, as the Pennsylvania Supreme Court’s three-day ballot extension decision demonstrates, Republicans have a point when they ask whether Democrats manipulated election law to gain a partisan advantage.

An independent commission also would have to look at those charges.

All this is necessary to address the very serious crisis of democracy that we are facing. Democrats have been strangely indifferent to widespread voter concerns about election integrity. The fact that these concerns have been provoked by lies does not make the concerns any less damaging.

Democrats cannot even see that an independent commission would destroy Trump’s credibility. He would be offered a chance to testify under oath, which he would certainly decline. That refusal would haunt him going forward.

If you want to keep Trump from running for office ever again, an independent commission to investigate the 2020 election would do it.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page.  Listen to his podcast, “Bends Toward Justice” hereHis forthcoming book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” will be published in October.

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne Kline Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Kline Duquesne Law School.