Editor’s Note: Ken Ballen served as staff counsel to the House select committee to investigate the Iran-Contra affair. The opinions expressed in this commentary are his. View more opinion articles on CNN.
With Minority Leader Mitch McConnell announcing his opposition to the creation of a bipartisan commission to investigate the January 6 attack on the US Capitol, prospects for Senate passage of the recent House bill creating such a commission appear slim.
House Speaker Nancy Pelosi should follow through on her willingness to create a select committee in the House to conduct a full and professional investigation of the January 6 insurrection instead. And she should do so quickly.
The model for this panel should be the select committee that investigated the Iran-Contra affair.
In January 1987, the House decided to launch an investigation into the most significant presidential scandal since Watergate. Given the magnitude of the investigation and the importance of bringing it to a quick conclusion, the House select committee was given legal powers beyond the usual norms of congressional oversight.
The chair of the select committee had full authority to issue subpoenas, compelling the production of documents and witnesses with the force of law. The committee also took the unusual step of conducting some 250 depositions – sworn testimony under oath – by its staff attorneys. Since the staff was comprised largely of former prosecutors, the witness testimony was analogous to a grand jury inquiry.
During the course of depositions, some witnesses asserted their Fifth Amendment privilege against self-incrimination. The committee, therefore, had the power to seek compulsion of testimony over Fifth Amendment objections by obtaining a court order immunizing a witness against the use of compelled testimony.
Only after having completed its investigative phase did the select committee hold 40 days of public hearings, with 29 witnesses testifying over the course of three months.
I served on the committee as counsel from its inception to its close. Our chair was Congressman Lee Hamilton, a Democrat, who insisted on the highest standards, and specifically that counsel conduct full and professional questioning of all witnesses before members of Congress had more limited turns. If the House decides to create a select committee to investigate the January 6 insurrection on the Capitol, it should follow his precedent.
Chairman Hamilton also worked diligently to cooperate with the minority Republicans on the select committee, but given the intractable Republican opposition now, Speaker Pelosi should endeavor to only accept the appointment of Republican members, such as Rep. Liz Cheney, committed to a professional investigation.
Republican Sen. Howard Baker, who later served as Ronald Reagan’s chief of staff, posed the famous question that animated the Watergate hearings in the Senate: “What did the President know and when did he know it?” Chairman Hamilton told me that we could not perform our duty to the country unless we answered the same question in our investigation of the Iran-Contra scandal.
When it comes to the January 6 insurrection, this Congress must have the same courage and fidelity to the Constitution to ask, what did then-President Donald Trump know and when did he know it?
It took three hours and 19 minutes between the time Capitol Police requested military assistance and the time when the military was finally ordered to respond, according to the testimony of DC National Guard Commanding Maj. Gen. William Walker.
Did former President Trump have any responsibility for the delay? Did he have any advance knowledge of the insurrectionists’ plans? Was there any coordination with the rioters beyond the President’s public words?
When faced with possible collusion by President Trump, now is not the time for business as usual on Capitol Hill.
A select House committee needs to conduct a thorough and proactive investigation adopting the model of the Iran-Contra select committee. Appoint a staff of experienced former federal prosecutors. Subpoena and depose witnesses under legal compulsion and under oath before even beginning public hearings. Immunize witnesses where necessary but freely and widely.
A well-documented and substantive record of professional fact-finding will help counter any claims of partisanship.
Traditional norms of oversight alone are not enough. Our democracy literally hangs in the balance.