The final report by the House committee investigating the Jan. 6, 2021, insurrection will provide the most comprehensive account yet of what led to the worst attack on the Capitol in more than 200 years. But it’s not likely to include all of the evidence the panel collected in its 18-month investigation.
Congress is not subject to the Freedom of Information Act, and House rules, which lawmakers approve with each new Congress, set an at minimum two-decade timeline before the public can see records that are preserved.
That means that potentially millions of pages of depositions, cellphone and text records, emails, staff notes and analysis by outside organizations compiled as part of the committee’s investigation that don’t make it into the official final report or aren’t released before the end of the year won’t become public for decades — if they ever do at all.
Republicans blocked the creation of an independent, nonpartisan commission to study the attack, which would have had to disclose much of its underlying evidence. The House committee’s investigation represents the most comprehensive compilation of evidence of the attack and its contributing factors assembled in one place. Federal investigators, journalists and public interest groups have been anxiously waiting to see what raw information the panel may provide on topics the committee didn’t fully explore.
Chairman Bennie Thompson (D-Miss.) said Monday that the committee will make public the bulk of the nonsensitive material it has compiled before the end of the year, though it is unclear what the scope will be and what will be deemed sensitive. Will it include staff notes as well as the more than 1,000 depositions taken by the committee? Will the public see internal memos or evidence analysis? And will emails or text messages be redacted for privacy reasons?
What the committee includes in its public report will largely determine what information the public will know about intelligence failures around the Jan. 6 insurrection and who was involved in them. For most of its investigation the committee refused the Justice Department’s request to hand over its internal work. On Monday, the committee agreed to send the Justice Department all evidence it has supporting its criminal referrals. The department is also likely to sift through evidence the committee makes public as it weighs criminal charges related to the attack.
Knowing that Republicans aren’t likely to reconstitute the committee next year, the panels’ members might have made the report as broad as possible, said Casey Burgat, director of George Washington University’s Legislative Affairs program.
“I think that the report has turned into a catch-all of every piece of information that they could [include] knowing that this is kind of their one place to be public about the committee’s work and finding they don’t want to leave any information to be guessed about or even overlooked. So I’d imagine that they want to put every single thing in there whether it seems to be important or not,” he said.
The report is expected to be released this week and to include eight chapters. The committee plans to release additional information such as transcripts and appendices through the end of the year. It will be published online, along with transcripts of depositions and video shown in the committee’s nine hearings. Hard copies of the report will be published by the government and several outside companies. It is unclear if the trove of source information will be included in printed copies of the report.
The select committee’s website could go offline as soon as a new Congress is sworn in.
Information on the website will be preserved online by the National Archives, which harvests the contents of congressional websites at the end of each Congress. The National Archives works with the Internet Archive, a San Francisco nonprofit, to scrape websites and save the information for public use. Video, links, search capabilities and some other information may not survive the process.
That’s what has some experts concerned: Putting a report online doesn’t necessarily make it accessible in perpetuity. For example, links used as footnotes in Special Counsel Robert S. Mueller III’s investigation into Russian attempts to interfere in the 2016 election no longer work, and the source information the links pointed to is lost.
Several government watchdog groups and academics concerned that more evidence could be lost are discussing creating a repository of the information the committee makes public in the next two weeks, along with scrambling to copy and preserve all of the linked information.
“The select committee’s investigation marks the beginning of a much longer-term project to pursue accountability for Jan. 6th. Public access to its records is critical groundwork for those ongoing and future efforts,” said Grant Tudor, a policy advocate at Protect Democracy, a nonpartisan, anti-authoritarianism group.
The final report, accompanying video and transcripts are just part of the mountain of information collected by the committee, which includes more than a thousand depositions, cell phone and email records obtained through subpoenas, internal communications by more than a half dozen federal agencies and never-before-released video footage from documentary filmmakers, Capitol security cameras and police body cameras. But because much of the committee’s investigation took place behind closed doors, the full scope of what information it has versus what it will release is unclear.
And what will happen with all that additional information is even less clear.
Normally, it can take months for staff to archive records from a major congressional investigation. The Jan. 6 committee had long promised to work until the last minute, and even took depositions in the last few weeks while working on the final report.
House Speaker Nancy Pelosi (D-San Francisco) is tasked with naming at least one successor committee who will be responsible for the records when the Jan. 6 panel expires at the end of the year. At the end of each Congress, committees hand over their official records to the House clerk, who transmits them to the National Archives.
Unless the House Select Committee approves it, only records that the panel has already made public will be available through the Archives.
“They’re basically free to make things available as they choose,” former Senior House Counsel Michael Stern said of the committee members. “But once they’re finished, once they go out of business and those records are boxed up, then they don’t have any control over them anymore.”
The National Archives is prohibited from making any other committee record public for 30 years. Records with sensitive or personal information can be held from the public for as long as 50 years. Though the committee has the power to authorize an earlier timeline for releasing the documents, it didn’t vote to set an one during its Monday meeting and is not expected to meet again.
Even once the documents go to the Archives, the House maintains control over them, and future committees can recall them from the National Archives at any time, though House rules say the recall is supposed to be temporary and not for the purpose of making them public, Stern said. Future congresses can also override which committee has control of the documents or halt an expedited timeline for disclosure set by the panel, Stern said.
House rules require committees to hand over their “official, permanent” records. But committees vary in what documents they consider an official record. For some, official records are transcripts of hearings, official correspondence and drafts of legislation. Others might include staff notes and internal memos.
“When you’re talking about things like say, staff notes, or less formal things, you can imagine there being a disagreement about whether those are really part of the official records of the committee, and whether those have to be turned over then sent to the archives or remain in the control of the successor committee,” Stern said.
There are several places documents can end up. Committees can also leave current records in the House repository. Information printed in the final report can go to the Government Publishing Office and be published on its website. The Library of Congress also preserves a copy of information on committee websites.
Burgat said committee records, particularly less formal documents such as staff notes, aren’t always handled properly, especially when control of Congress changes parties.
“People that I’ve talked to that worked on [committees] kind of say, ‘I don’t know, they’re stuffed in a drawer somewhere, they can be filed with the clerk of the House for safekeeping,’ but no one really does keep an itemized list of all these things,” Burgat said.
The public is likely to learn more about what happened on Jan. 6, 2021, in dribs and drabs, he said. For example, Talking Points Memo recently obtained a trove of text messages sent to or from former White House Chief of Staff Mark Meadows that the committee had. On Monday, CBS News released audio from the committee deposition of former Gen. Michael Flynn, Trump’s former national security advisor.
“Through leaks, members voting to release them, making them public, staffers down the line working on memoirs … the lines of connection with the public to make these things public will be open more and more as we get further removed from [the investigation],” Burgat said. “Trash is probably the least likely scenario for a lot of these documents.”
House Minority Leader Kevin McCarthy (R-Bakersfield), who is likely to become speaker, sent Thompson a letter last month demanding the preservation of “all records collected and transcripts of testimony taken during your investigation” in accordance with House rules.
“The official Congressional Records do not belong to you or any member, but to the American people, and they are owed all of the information you gathered — not merely the information that comports with your political agenda,” the letter states.
McCarthy’s letter signals that Republicans may make an issue of what is saved and what is not, Stern said.
“Legally, I don’t know if it has an effect. But politically, it put [the committee members] on notice that this is going to be an issue,” Stern said. “You know, whether things are destroyed or just not included in the official record of the committee, that will be an issue that could be controversial in the next Congress.”