Inflation, abortion and crime are dominant issues in the midterm elections, but Thursday’s public hearing by the House select committee investigating the Jan. 6, 2021, attack on the U.S. Capitol was a valuable reminder of what else is at stake in November.
The connection between the attack and the midterm elections couldn’t be clearer. The committee’s hearings have established that former president Donald Trump was prepared before the 2020 election to call foul if he lost — that he willfully ignored aides who told him after the voting that he had lost, then brazenly brushed aside those who told him his conspiracies about widespread fraud were unfounded and sometimes ludicrous. Trump continues to traffic in these same false claims today.
Meanwhile, hundreds of Republican candidates who have bought into the lie that the election was stolen are on ballots this fall. If they win, they pose potential threats to future elections. The threats will become even more serious if an unadmonished Trump becomes the party’s 2024 presidential nominee.
The panel’s last public hearing before the election produced no dramatic new revelations. It was more a summation of the case against Trump. But it did include one provocative act: a unanimous vote to issue a subpoena to Trump to testify before a final report is issued, a stick in the eye of the person the committee has made the focus of its work. The chances of Trump’s testifying are almost nonexistent, which leaves dangling the question of how and when Trump will be held to answer for what happened.
A criminal referral to the Justice Department is certainly possible. Months ago, in a filing in federal district court, the committee asserted that it believed there was enough evidence to charge the former president. That would leave the issue where it has been for some time, in the hands of Attorney General Merrick Garland. But like the subpoena, a criminal referral would be mostly symbolic.
The House committee hearings, as thorough and compelling as they were, were not a court of law. There was no cross-examination of witnesses, no presentation by a defense, no jurors other than the court of public opinion, which has been sharply divided from the beginning and did not seem to change over the course of the summer and fall. Justice Department lawyers do not need a criminal referral from the committee; their investigation has been moving forward on a parallel track.
The committee can state its conclusions more or less definitely. Garland and the Justice Department lawyers must measure their decisions against standards that are different from those by which the House committee’s conclusions can be stated. For example, is the evidence against Trump compelling enough to persuade Garland that there is a high chance a jury would convict the former president on the basis of what the Justice Department has found?
Even if that standard were met, another question would have to be considered, as Jack Goldsmith of the Harvard Law School wrote some months ago in the New York Times: Would bringing the case against the former president have such consequences on a divided and inflamed country that the cost of going ahead is greater than the cost of not doing so? Whatever the final decision by the Justice Department turns out to be, it will draw a cascade of criticism.
Rep. Liz Cheney (R-Wyo.), who sacrificed her House seat to pursue the Jan. 6 investigation, has said repeatedly she does not think Trump should ever be allowed to get near the office of the presidency again. Disqualifying him from that possibility has been her work since the Capitol came under attack, and it is likely to remain her objective even when she is no longer an elected official in the party that has turned itself over to Trump.
In the absence of a charge and conviction, the ultimate question of Trump’s fate and future would be left to the voters, that is if he decides to run in 2024. Some non-Trump Republicans, however, see Trump as wounded and unelectable by 2024. Former House speaker Paul D. Ryan (Wis.) is among them, as he signaled recently.
But every poll today — and take them for what they are, more than two years before the next presidential election — shows that Trump could be reelected in a rematch with President Biden. At that point, a second-term Trump, untethered and likely to be vengeful, could try to do many of the things he was not able to do before — and as was noted Thursday, probably without enough people around him who would try to dissuade him.
That brings the story back to November and midterm elections that well could change the balance of power in Washington and affect politics and governance in the states. Republicans need just five seats to take over control of the House, and it is hard to find a prognosticator who is suggesting that the GOP will get fewer than that number. How many more than that is a matter of debate, but there are more than enough Democratic-held seats in play, and the normal cycles of midterm elections are at work, to give Republicans a clear advantage.
Nate Silver’s modeling at FiveThirtyEight gives Republicans about a 7 in 10 chance of taking control of the House. That leaves the Democrats with slender odds of holding their majority, although as 2016 taught everyone, sometimes slender odds turn out to be winning odds. Otherwise, Trump would never have been in the White House.
A Republican House and the possibility of a Republican Senate, albeit one with the narrowest of majorities, foreshadow a period of legislative gridlock in Washington but a climate that could spawn House investigations going after Biden, his policies, his son Hunter and others in the administration. Already, there is loose talk about impeachments.
After the election, much of the country’s political focus will shift to the next presidential campaign. November’s results will offer clues about how much chaos could lie ahead, depending on how many election deniers win and whether they begin to act on what they’ve said. One clue could be how smoothly the counting and verification of these elections goes.
Beyond that, the potential for disruption in 2024 will exist if enough Trump acolytes are elected in the states or Congress. Trump’s position seems clear: If he is the GOP nominee, he will contest any election he loses. Now he could have sympathetic elected officials working to challenge the normal process of declaring a winner and a base of supporters prepared not to accept legitimate results.
Trump loyalists regarded the committee’s work as purely partisan. Other voters were indifferent to the hearings, preferring to move on from the past. But the committee’s findings and the ongoing work by the Justice Department keep Trump in the forefront of the choices that many voters will be making. The committee has made its case. It will be left to others, government officials and citizens alike, to decide whether to act on it, in November and beyond.