Legal experts explain what can be done to ensure an investigation if Republicans block Jan. 6 Commission
Sen. Mitch McConnell -- MSNBC screengrab

American Oversight chief Austin Evers outlined alternatives if Republicans are successful in blocking the Jan. 6 Commission to investigate what led to the security failures and ignored indicators surrounding the Capitol riot.

The Senate isn't as likely to pass the legislation, despite the bill passing with bipartisan support in the House. Republicans helped craft the commission and had a list of demands that Democrats agreed to. Still, Senate Minority Leader Mitch McConnell (R-KY) argued that in its current form he wouldn't support it.

"Every effort should be made to overcome the opposition to a commission," said Evers. "But we should also consider alternatives given that the commission may not happen and, even if it does, the current plan to sunset the commission by the end of 2021 would render it effectively powerless to compel evidence. What's more, laying out what might happen if a commission fails could help convince doubters that a commission is preferable: For all the concerns expressed by Republicans in the Senate, they may prefer a commission they can influence over a select committee they cannot."

He cited Norm Ornstein and Andy Wright, who both have recommendations like a congressional select committee akin to what Republicans formed six times to investigate the Benghazi attacks. Another option is for the Justice Department to appoint a special prosecutor to investigate much like Robert Mueller and Ken Starr. A different proposal suggested a presidentially-created commission, though it seems less likely given President Joe Biden's statements that he wanted to move forward not back.

Congress could also file their own individual committees that look at different pieces of the investigation.

All of the options would likely extend beyond the end of 2021 and into the 2022 election year. The Republican compromise bill demands that the commission be finalized by the end of 2021 so that it doesn't become a political battle.

Evers also explained that "one of the most complicated dynamics of any January 6 investigation is the role of members of Congress themselves. Members were key players and key witnesses in the events. No matter what institution investigates, it will be a challenge to obtain information from them. If the investigating body is part of Congress, those challenges could be compounded by institutional reluctance to create precedent that pierces legislative privileges and traditions."

He closed by arguing that an independent bipartisan commission is the best option but that Americans can't "wait forever" as Senate Republicans attempt to dodge the vote.

"And every day spent negotiating in vain for a commission for which there are not ten Republican votes in the Senate is a day lost for others to conduct an investigation. If a commission is not in the cards, the House should move expeditiously to create a select committee. It's not the ideal option, but it might be the best one available," Evers closed.

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