The Jan. 6 committees work investigating the Capitol insurrection has been incredibly impressive. Investigators have uncovered new and damning information about Donald Trumps culpability in the violence of Jan. 6; theyve reinvented the congressional hearing format to tell a dramatic story and grip the attention of a distractible public; and theyve shown just how capable a congressional committee can be when given the chance.

So when the committee released the 100-page executive summary of its forthcoming reportstyled as Introductory Material to the Final Report of the Select CommitteeI was ready to be astonished yet again by the quality of its work. And I wasbut not in a good way. The summary systematically elides the egregious failures of law enforcement and intelligence agencies to predict and respond to the violence of Jan. 6. More than that, it goes out of its way to present those agencies in a positive light, despite their catastrophic neglect.

The committee has yet to publish its full report and the accompanying appendices, which will reportedly be released in the coming days. So Im wary of drawing conclusions too quickly without having all the evidence in front of me. That said, the portrayal of law enforcement and intelligence officials in the summary is bizarre enough that its worthy of immediate attention.

Jan. 6 is a story about Trump and his supporters, but it is also a story about how the federal government dropped the ball on anticipating and preparing for violence. As NBC states in its reporting on the summarys odd framing, many experts and former officials have termed this the biggest intelligence failure since Sept. 11. The FBI produced only one document in the run-up to Jan. 6 warning of potential violencea bulletin not from FBI headquarters or the desk of the director, but from the bureaus Norfolk, Virginia, field office. FBI Director Christopher Wray told Congress that he was not aware of that report in advance of Jan. 6. According to the bureaus top counterterrorism official, the FBI was also not aware of online conversations about potential violence in the days before the insurrectiona bizarre statement given that the plans for violence were plainly available to anyone with an internet connection.

And the failures were not confined to the FBI. The Department of Homeland Security Office of Inspector General found that several divisions within the departments Office of Intelligence & Analysis identified the risk of violence in advance of Jan. 6, but that the department failed to distribute this information widely. The office did not issue any intelligence products about these threats until January 8, the inspector general wrotetwo days after the riot. Likewise, a June 2021 report from the Senate Rules Committee and the Senate Homeland Security and Governmental Affairs Committee describes in detail how officials at the Capitol Police found themselves utterly unprepared on Jan. 6. Again, some members of the Capitol Police identified the risk of violence ahead of time, but these assessments were not communicated widely either within the agency or outside it.

None of this is to take away from the actions of Capitol Police, the D.C. Metropolitan Police Department, and other law enforcement officers at the Capitol during the insurrection. Many people engaged in acts of genuine heroism that day. The failures Im describing here have to do with the governments failures to prepare in advancemany of which can be laid at the leadership of agencies like the FBI and the Department of Homeland Security, who failed to steer their employees toward focusing on the obvious threat in advance of the insurrection.

The result was that the government was caught unawares on Jan. 6with catastrophic effects. But you wouldnt know that from reading the committees executive summary.

The strangeness begins on page five, when the committee states,

The intelligence community and law enforcement agencies did successfully detect the planning for potential violence on January 6th, including planning specifically by the Proud Boys and Oath Keeper militia groups who ultimately led the attack on the Capitol. As January 6th approached, the intelligence specifically identified the potential for violence at the U.S. Capitol. This intelligence was shared within the executive branch, including with the Secret Service and the Presidents National Security Council. (Emphasis added.)

Without seeing the full report, its difficult to fully evaluate what the committee is saying hereit may be referring to specific intelligence that was passed along. And as Ive noted, it is true that a small number of officials did identify the risk of violence and shared that information to some extent. But given the broad failures to anticipate Jan. 6, it seems overly generous to describe the intelligence community and law enforcement agencies as successfully detect[ing] the planning for potential violence without noting anywhere that those agencies failed to disseminate or act on the information they did obtain.

The committee is seemingly drawing a distinction between agencies detecting the possibility of violence (which they did, to a limited extent) and agencies acting on that information (which they did not). Some officials did notice that something might be wrong in advance of the insurrection: The committee quotes Donell Harvin, who was serving as chief of homeland security and intelligence for the District of Columbia on Jan. 6, describing a number of red flags identified by his agency in advance of that day and his efforts to raise the alarm. But there were systematic failures in communicating that information between and within different branches of the federal government, and the FBI and Homeland Security leadership in particular sat on its hands.

All that is consistent with the committees language. The phrasing here is relatively sunny, but defensible. Later in its report, though, the committee moves from generous to contorted.

The committee provides an extensive list of tips received by agencies including the FBI, the Secret Service, and the Capitol Police about potential violence in advance of Jan. 6. But nowhere does the committee state that the agencies in many cases failed to respond to these tips. Likewise, the committee notes the Norfolk reportbut says nothing about the fact that the report received little attention and was the only intelligence product to come out of the FBI before the insurrection. A reader unfamiliar with the background might come away with the impression that the federal government was well aware of and prepared for the potential for violence in advance.

The summary also makes bizarre contortions to let intelligence agencies off the hook. In a footnote, it suggests that the government simply might not have had the time to fully analyse the information it was receiving in the days before the insurrection: Given the timing of receipt of much of this intelligence immediately in advance of January 6th, it is unclear that any comprehensive intelligence community analytical product could have been reasonably expected. But it is clear that the information itself was communicated.

A former FBI official described this to me as word salad.

Why would the Jan. 6 committee want to soft-pedal intelligence failures in this way? One clue is on page 48. After describing warnings raised by the District of Columbias Homeland Security office, the report reads:

Again, this type of intelligence was shared, including obvious warnings about potential violence prior to January 6th. What was not shared, and was not fully understood by intelligence and law enforcement entities, is what role President Trump would play on January 6th in exacerbating the violence, and later refusing for multiple hours to instruct his supporters to stand down and leave the Capitol. No intelligence collection was apparently performed on President Trumps plans for January 6th, nor was there any analysis performed on what he might do to exacerbate potential violence. Certain Republican members of Congress who were working with Trump and the Giuliani team may have had insight on this particular risk, but none appear to have alerted the Capitol Police or any other law enforcement authority.

This analysis frames intelligence failures as essentially a matter of government officials inability to predict Trumps violent and irresponsible actions. To put it another way, it suggests that Trump was the problemrather than systematic failures. The committee is correct to identify a genuine tension here between Trumps role as chief executive and the responsibility of law enforcement and intelligence agencies to protect the country against security threats that the president himself was helping to create. The summary argues that the central cause of January 6th was one man, former President Donald Trump, who many others followed. But Trump was not the only reason that Jan. 6 happened the way it did. He caused the insurrectionbut intelligence and law enforcement agencies failed to prevent it. And framing the issue this way frees the FBI, the Department of Homeland Security, the Capitol Police, and others from taking responsibility for those failures.

Recent reporting by the Washington Post and NBC has described tensions within the Jan. 6 committee over whether to focus the final report narrowly on the actions of Trump specifically, or whether to incorporate the broader range of issues around the insurrection. Both outlets reported that staffers investigating law enforcement failuresthe Blue Team, in the colour-coded parlance of the committees workwere frustrated by the possibility that their work would be set aside due to the insistence of Rep. Liz Cheney (R-Wyo.) that the committee narrow its focus to Trump. Ive been unsure what to make of this reportingafter all, the committee is working on an extremely tight schedule, and its easy to see how that could lead to good-faith disagreements about what aspects of the sprawling investigation to focus on and how. I was ready for a report from the committee that perhaps downplayed the role of law enforcement in what happened on Jan. 6 to put the spotlight on Trump individually. I did not expect that the committee would distort the facts to flatter law enforcement in this way.

Such distortions are especially disappointing because the Jan. 6 committee has otherwise produced a powerful and important body of work. These arent minor quibbles. If Americans dont get an accounting of how law enforcement and intelligence agencies failed on Jan. 6, how can we hope to fix the flaws that led to those failures in the first place and ensure that something like the insurrection doesnt happen again?

Hopefully, the full committee report will somehow mitigate the summarys serious flaws. Ill be reading it closely.

First published in LAWFARE December 20, 2022