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Fact Check: Can Jan. 6 Investigation Move to Senate After GOP Took House?

Newsweek 11/22/2022 James Bickerton

The Republicans won a majority in the U.S. House of Representatives at the November 8 midterm elections, effectively ending any likelihood of an extension to the House January 6 select committee.

Currently, the committee is due to dissolve in January, when the next Congress meets. There was speculation in the media that the Democrats could have carried it over if they retained control of the House, as the GOP did with the Benghazi committee, which was extended after the 2014 midterms. But House Republicans will take charge in January.

House Minority Leader Kevin McCarthy (R-CA), the frontrunner to be the next Speaker of the House, previously described the January 6 committee in a June 2022 statement as "the most political and least legitimate committee in American history."

However, the Democratic caucus did retain control of the Senate by flipping a seat in Pennsylvania, and could increase their majority by one if victorious in next month's Georgia runoff election.

This has sparked discussion over whether the House January 6 committee's work could be transferred to the still-Democratic Senate.

The Claim

As the GOP looked poised to take the House, a number of political pundits and social media users raised the prospect of the January 6 investigation shifting to the chamber of Congress still under Democratic control.

"Because Democrats have won the Senate majority, they will retain control of every regular Senate committee (Oversight, Judiciary, Intelligence, etc) for the next two years," wrote Bill Palmer in the Palmer Report, a liberal website.

"So if the January 6th Committee feels that its work does need to continue for the long term, nothing says its investigation – or even its members – can't be folded into a Senate committee in some way. It would be an unusual move, but these are unusual times."

Twitter users also pointed to a segment in the Ari Melber show on MSNBC from November 14 (now removed from the site), where a similar idea was raised.

"I just heard @neal_katyal make a great suggestion for the@January6thCmte to consider," one user tweeted, garnering more than 8,000 engagements.

"Immediately make arrangements to transfer this investigation to the new Senate when it starts so trump can't continue to run out the clock. We don't have answers yet. Pence & Trump need to talk."

Katyal himself retweeted the post.

Lawyer Tristan Snell took a different approach, calling for a new January 6 committee to be created in the Senate. He tweeted: "So Republicans win the House and disband the January 6 committee? Just open up a new committee in the Senate. There, problem solved." The post saw more than 50,000 engagements.

The Facts

As the proposal to shift an investigation from the House to the Senate for now remains a hypothetical, Newsweek Fact Check consulted with a number of legal scholars and political experts to assess the legal grounds for such a development.

Speaking to Newsweek, Professor Richard Bensel, an expert in the U.S. Congress who teaches at Cornell University, said the House January 6 committee cannot simply be transferred to the Senate.

He said: "The Senate could certainly open its own investigation into the January 6 events. The investigation would not be 'moved across to the Senate' in a formal sense because this was not set up as a joint investigation (it could have been but was not)."

However, Bensel noted the House committee could "share all of its documents, transcripts, and whatever else it wished" with a new Senate committee.

David Bateman, an associate professor of government at Cornell University, agreed.

Addressing Newsweek, he said: "The committee itself can't be transferred, obviously, since the Committee is its elected House members and cannot continue past the end of the congressional session (or 30 days after filing its final report).

"But some of its work—beyond interim or final reports—could plausibly be shared with the Senate. It's not clear to me whether the Committee itself would have authority to share material beyond reports (and classified annexes) on its own, since that doesn't show up in the authorizing resolution. But the House could decide to do so."

Professor Paul Quirk, a U.S. politics expert at the University of British Columbia, repeated this view, though he noted subpoenas issued by the House committee would no longer be valid.

The professor said: "The House committee can certainly hand all of its files and plans over to the Senate, and the Senate can create its own select committee and proceed with the investigation. The Senate committee can also pick up the departing House staff who want to continue with the investigation.

"The main difficulty is that the Senate committee couldn't demand that Trump, or any other witnesses, show up to testify in response to subpoenas that were issued by the House. It would have to start over with any subpoenas.

"In the end, the handoff of the investigation would set it back a few months, for organizing the new committee, issuing new subpoenas, and other complications, but if important investigating remains to be done, nothing prevents it."

Newsweek has reached out to the January 6 Select Committee and the Senate Majority Leader Chuck Schumer for comment.

The Ruling

Needs Context.

The House January 6 committee cannot simply be moved across to the Senate in its current form.

However, it is possible for the Senate to set up its own January 6 committee, which could potentially access material collected by the House committee, and seek to employ its former staff.


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