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The Justice Departments pledge that it will no longer secretly obtain the records of journalists has left a number of unanswered questions about the departments handling of leak investigations initiated under the Trump-era.

It's not clear what high ranking Biden officials knew and when as DOJproceeded with cases involving reporters from three different media outlets orwhy the department continued to push for gag orders in two cases even after PresidentBiden said late last month that seizure of journalist records was "simply simply wrong."

Press advocates were happy to see Justice reverse itselfSaturdayand say it would no longer target journalists, but they also point out theyd like to know more.

Its a welcome policy change, but part of the problem is what we just don't know. We have significant unanswered questions with regard to what happened in all three cases, said Gabe Rottman, director of the Technology and Press Freedom Project with The Reporters Committee for Freedom of the Press.

Justice notified reporters itreceived phone records from CNN, The Washington Post and The New York Times, while email logs were obtained for CNN.

The investigations were all tied to stories each outlet had written in the early days of the Trump administration. That includes an investigation into whether former FBI Director James ComeyJames Brien ComeyNYT publisher: DOJ phone records seizure a 'dangerous incursion' on press freedom Trump DOJ seized phone records of New York Times reporters The FBI should turn off the FARA faucet MORE shared details with reporters about a document that influenced his decision to close an investigation into Hillary ClintonHillary Diane Rodham ClintonAuthor James Patterson: 'Fiction still works' Florida Rep. Val Demings officially enters Senate race against Rubio McAuliffe wins Democratic primary in Virginia governor's race MORE.

During the time period in which records were sought, The Post also published a story about former Attorney General Jeff SessionsJefferson (Jeff) Beauregard SessionsDemocrats claim vindication, GOP cries witch hunt as McGahn finally testifies CNN reporter's phone and email records secretly obtained by Trump administration: report Biden looks to expand legal assistance for minorities, low-income Americans MOREs contact with Russian officials and CNN reported on U.S. military proposals on North Korea.

This saga is just another reminder that much of what occurs in government is due to institutional practice, and that a mere shift in political power doesnt immediately halt all ongoing executive branch actions, Bradley Moss, a national security lawyer, told The Hill by email, noting that former President TrumpDonald TrumpFormer House Republican to challenge DeWine for Ohio gubernatorial nomination GOP senators press Justice Department to compare protest arrests to Capitol riot Overnight Defense: Austin directs classified initiatives to counter China | Biden emphasizes alliances in speech to troops | Lockdown lifted at Texas base after reported shooting MORE expanded leak investigation practices used under the Bush and Obama administrations.

The current leadership under [Attorney General Merrick] Garland is trying to sort out particular actions they believe warrant continuing for institutional and legal reasons, as opposed to those such as the surveillance of reporters communications they no longer view as necessary or appropriate.

The seizures were a deviation from a Justice Department policy that typically requires the department to notify reporters as soon as their records are sought.

But the Trump administration took advantage of a provision that allows the attorney general to delay notification if there is a threat to the integrity of the investigation or a risk of grave harm to national security or death.

In such cases the Justice Department is required to disclose that the records were obtained within 45 days, though the attorney general can extend that period for another 45 days.

The timeframe largely left the task to fall on the Biden administration, though its not clear if the Biden Justice Department met the 90-day requirement for notifying reporters.

Justice did not respond to a request from The Hill on this matter.

Its also not completely clear how high up the chain decisions were made or why Justice continued to push for secrecy after Bidens May 21 comments.

The department continued to seek gag orders on lawyers at both The New York Times and CNN to prevent attorneys from sharing the legal matter with new executives or reporters.

According to reporting from The New York Times, the Bidens Justice Department fought into the first days of March to keep Google, The Times email provider, from notifying the papers lawyer about the attempts to seize reporter emails.

Even after Garland was sworn in on March 11, Justice sought to keep The Times lawyer from sharing the details of the case beyond a few top executives a position it did not reverse until June 2.

The White House said it was not aware of the gag order until the agency relented in court.

As appropriate given the independence of the Justice Department in specific criminal cases, no one at the White House was aware of the gag order until Friday night, White House Press Secretary Jen PsakiJen PsakiNew report reignites push for wealth tax Democrats blast Biden climate adviser over infrastructure remarks Manchin says Biden has not pressured him to support elections, spending bills MORE said in a statement.

But even after the Justice statement Saturday, the agency still hadnt resolved a similar gag order with CNNs lawyer, which wasnt lifted by a judge until Wednesday.

Justice is facing calls to more fully explain what happened.

We need to know precisely who authored what, when the records were sought, when they were received, why the decision to delay notification was made we just need a full accounting of precisely what happened in all three of these cases, Rottman said.

And that full accounting is a prerequisite for determining whether additional policy reforms are warranted to make sure it doesn't happen again.

Justice has said it has no pending compulsory requests from reporters in leak investigations.

Going forward, consistent with the presidents direction, this Department of Justice in a change to its longstanding practice will not seek compulsory legal process in leak investigations to obtain source information from members of the news media doing their jobs. The Department strongly values a free press, protecting First Amendment values, and is committed to taking all appropriate steps to ensure the independence of journalists, DOJ spokesman Anthony Coley said Saturday.

But some are concerned the new policy may not be protective enough.

The new policy only applies in leak investigations and only to members of the news media and only when they are doing their jobs so it's not clear who the DOJ would count as members of the news media or what is means when it says theyre doing their jobs, so we need more information on what the policy actually is, said Anna Diakun, a staff attorney with the Knight First Amendment Institute at Columbia University.

Garland said at a Senate Appropriations Committee hearing Wednesday that he would issue a memo soon to solidify the media policy changes.

The president has made clear his view about the First Amendment and it coincides with mine, he said. Going forward, we have adopted a policy which is the most protective of journalists' ability to do their jobs in history.

But its not an issue likely to go away. At the same hearing Wednesday, Sen. Susan CollinsSusan Margaret CollinsPress: Joe Manchin ain't no profile in courage Senate passes bill to provide payments to 'Havana syndrome' victims On The Money: White House sees paths forward on infrastructure despite stalled talks | Biden battles Dem divides | FBI seizes bitcoin ransom paid by Colonial Pipeline MORE (R-Maine) asked if Justice would be investigating a breach, pointing to a ProPublica article analyzing the taxes paid by some of the wealthiest Americans after obtaining their confidential records.

Garland said only that he was sure that that means it will be referred to the Justice Department.

Media advocates also want Justice to do more to ensure the policy change will be lasting.

This is a reminder that DOJs protections for the news media are subject to change at the whim of an administration. There's nothing to stop President BidenJoe BidenWhite House announces major boost to global vaccine supply U.S. in talks to buy Moderna's COVID-19 vaccine to send abroad: report Pentagon to consider authorizing airstrikes in Afghanistan if country falls into crisis: report MORE from walking this commitment back in the future or a later administration from reversing this policy altogether. And without this certainty reporters and their sources just can't be sure whether their communications will be protected and that has a significant chilling effect, Diakun added.

Justices use of the 1917 Espionage Act to seek reporter records has dramatically ticked up over the last 20 years, with the Bush and Obama administrations also relying on the law to go after leakers.

The latest episodes have renewed calls for a federal shield law, modeled after numerous state laws that protects the rights of reporters to refuse to testify about sources of information obtained during the newsgathering process.

Jake Laperruque, senior counsel for The Constitution Project at the Project on Government Oversight, said the real test will be whether the department pushes for legislative changes.

If were going to stop a [seizure] policy that happens again and again we need a law to stop it, he said, adding that the record of the last 20 years indicates the tendency is to do the opposite.

Its not going to be enough to be responsible in the moment. If you want to make sure youre actually protecting civil rights and civil liberties, you have to push for changes that are actually going to bind future administrations.

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Mystery surrounds Justice's pledge on journalist records | TheHill - The Hill

Last week, the U.S. Supreme Court resolved an important question about the meaning of provisions prohibiting "unauthorized access" or "exceeding authorized access" to computer systems and databases under the Computer Fraud and Abuse Act of 1986 (CFAA). The Court, in a 6-3 decision, sided with lower courts that found the CFAA does not prohibit accessing data for a purpose other than the purpose for which the user was permitted access in the first place. The decision will have far-reaching consequences for anyone who uses computers to access and retrieve information digitally.

The CFAA subjects to criminal and civil liability anyone who "intentionally accesses a computer without authorization or exceeds authorized access."1The term "exceeds authorized access" means "to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter."2

Everyone agrees that these provisions of the CFAA prohibit traditional hacking done for a malicious purposefor example, breaking into a computer system by using an illegally obtained password to steal data or encrypt files. They also cover "insider threats"an employee who, for example, has access to a portion of a computer system but who accesses portions that she is not authorized to access (e.g., restricted systems containing business secrets).

For decades, courts have been divided whether the CFAA also prohibits accessing computer systems or files with permission, but for a forbidden reason. Does an employee "exceed[] authorized access" by, for example, downloading materials she is allowed to access for work, but with the intent of quitting and taking those materials to another employer?

The facts of Van Buren provide a stark example. A police officer, Nathan Van Buren, was offered $5,000 to check whether someone was an undercover police officer, using a license plate number. Van Buren searched for the number in a license plate database to which he had access, but only for legitimate law enforcement purposes.

In fact, the request was part of a sting operation, and Van Buren was arrested after carrying out the search and offering that he had information to share. Prosecutors charged Van Buren with several crimes, including violations of the CFAA. Van Buren argued that he was authorized to access that database, and the fact he accessed it for an unauthorized reason did not mean he had "exceed[ed] authorized access."

The U.S. Supreme Court agreed. To the majority, the case was simple. The Court relied primarily on the text of the statute, particularly the definition of "exceeds authorized access," to conclude that Van Buren was "entitled" to obtain the material he obtained, and in the manner that he obtained it. That he accessed the material for an improper purpose did not change the textual analysis.

The Court also concluded that this reading was more consistent with the overall structure of the CFAA, as it harmonized the analysis under the "without authorization" and "exceeds authorized access" prongs of the statute. Under the majority's reading, both prongs pose a straightforward "gates-up-or-down" inquiryone either has permission to access a system or part of a system, or one does not.

The Court also concluded that the government's reading of the statute would mangle the CFAA's civil liability provisions, reasoning that the statute's civil remedies for "loss" and "damage" are best suited to address the consequences of traditional computer hacking (loss of data, inability to access systems, etc.)not claims of data "misuse." In fact, the government conceded that the access provisions in the CFAA "prohibit[] only unlawful information 'access,' not downstream information 'misus[e].'"

Finally, the Court noted that "the Government's interpretation of the statute would attach criminal penalties to a breathtaking amount of commonplace computer activity." "If the 'exceeds authorized access' clause criminalizes every violation of a computer-use policy," the Court explained, "millions of otherwise law-abiding citizens are criminals." Any employee who is authorized to use an employer-supplied computer only for business purposes would, for example, violate the CFAA by sending a personal email.

Van Buren is critically important to a vast array of companies. The decision will limit the ability of some companies to use the CFAA to enforce terms of service that prohibit particular uses of their data, as well as the ability to punish employee misconduct.

And the decision is a welcome result for computational journalism: As DWTand in particular, Kate Bolger, Jack Browning, and David Gossettargued in an amicus brief, a different, broader reading would have infringed on established First Amendment protections for journalistsincluding amicus The Markup, a nonprofit news organization that conducts data-driven investigations into digital technology.

1 18 U. S. C. 1030(a)(2).2 18 U. S. C. 1030(e)(6).

[View source.]

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SCOTUS Limits Reach of Computer Fraud and Abuse Act: Nefarious Reasons Are Not Enough for Criminal Liability - JD Supra

With the explosion of revelations from the release of the emails of Dr. Anthony Fauci, director of the National Institutes of Allergy and Infectiousness Diseases at the National Institutes of Health, it has been discovered that Facebook is censoring users posts of those public records, according to Reclaim the Net.

The emails published last week by Buzzfeed and the Washington Post showed Fauci the COVID-19 expert whose profile has been boosted by voluminous appearances on mainstream media news outlets taking contradictory stances on the issues of masks and quashing evidence that the virus originated at the Wuhan Institute of Virology in China. The emails undermined several other narratives that Fauci and the federal government have rammed down the throats of Americans, who have been forced to suffer under lockdowns and economic destruction, attributed to the threat of the coronavirus.

Facebook and other social media companies have been a huge part of driving that narrative. The emails showed that CEO Mark Zuckerberg communicated directly with Fauci and informed him of his plans to start a virus information resource on Facebook, which the doctor encouraged. Throughout the pandemic Facebook has censored posts by its customers of anything that it has deemed misinformation about the pandemic, including questioning the use of masks and discussions about the origins of the virus.

Facebooks fact-checkers also used a letter signed by 27 eminent health experts published in the prestigious medical journal The Lancet which attempted to debunk the Wuhan lab virus origin theory, as the basis to justify censoring posts that questioned the natural evolution narrative of the viruss transition from animals to humans. The composition, signatories, and publication of the letter were engineered by Peter Daszak, whose non-profit Ecohealth Alliance received funding from NIH and directed it to the Wuhan lab.

Now even the first-hand evidence of Faucis emails themselves, are censor-able materials according to Facebook. One example cited by Reclaim the Net shows former New York Times reporter Alex Berenson among the few journalists who have questioned the government narrative on issues related to the virus showing posts that were censored because they didnt follow (Facebooks) community standards.

The open alliance between Big Tech and government agencies on #covid raises all sorts of questions, Berenson wrote, especially this one if @Facebook is serving as an arm of the government, why doesnt the First Amendment apply to it?

Texas Sen. Ted Cruz, a Republican who as an attorney argued constitutional issues before the Supreme Court, asked similar questions in an appearance on Fox News on Sunday:

These latest breakthroughshave real consequence becauseit now is clear that Facebookwas operating at the directionof and in the direct benefit ofthe federal government andoperating as the governmentscensor, utilizing their monopolyposition to censor on behalf ofthe government

If you went out andposted the facts that led a yearago to the very stronglikelihood that the COVID virusescaped from a Chinesegovernment labin Wuhan,China,if you posted that a year agoand they took it down, I thinktheres a very good argumentyou have a cause of actionagainst Facebook.

Facebookwould ordinarily say, Were aprivate company, were not liable.

Well, you know what, when they act atthe behest of the government, when theycontact [Anthony] Fauci, when they say, Should we censor this? and Faucisays, Yes and they censor it for thefederal government and then magically when thegovernment changes its mind, and say, Oh, allthose facts that were there a year ago,now youre allowed to talk aboutit, they stopped censoring it with aflip of a switch, that lays a very strong argument thatFacebook is operating as a stateagency and that opens verysignificant legal liability.

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Is Facebook an Arm of the Government and Therefore Subject to the First Amendment? - National Legal & Policy Center - National Legal and Policy...

RALEIGH, N.C. (WNCN) A new leader of Raleigh police means a new set of expectations.

The new chief will replace Cassandra Deck-Brown, who announced her retirement back in December.

That commitment to community policing I think is the key to developing good relationships, said Mayor Mary-Ann Baldwin. I think that that is one of the most important things we can do. Where police officers are in the community. They know the members of the community. People know each other by name.

She was named chief in 2013.

She [Deck-Brown] brought a new perspective and a different perspective. I think that has been extremely valuable, said Baldwin.

In Deck-Browns tenure as chief, she put in place things like body-worn cameras and mental health first-aid training.

According to the citys website, she also implemented the Raleigh Citizens Police Academy and reality-based training with additional curriculum development for police officers.

However, she faced criticism.

For instance, the departments handling of protests in late May and early June 2020 after George Floyds death. An independent firm was hired to review the matter. This year the firm released its recommendations.

One piece was more specific training on First Amendment rights. How you deal with protests. I think we have followed some of their guidance. Our response has been much more measured, Baldwin explained. Im hoping our new chief has very specific ideas about First Amendment rights. How you patrol in those instances. How you really serve and protect.

Baldwin said for the city, this is the next step. She said theres an increase in RPDs budget.

Some of that money going towards hiring officers to do more community engagement work and help combat the rise of domestic violence this past year.

But the question is, can we do better? The answer to that is yes, Baldwin stated.

On Wednesday, Raleigh announced the three finalists to replace Deck-Brown.

Click here to read more on the finalists.

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Raleighs mayor weighs in on what she wants to see in new police chief - CBS17.com

During the days following the attempted insurrection on Jan. 6, with both Democrats and Republicans condemning the riot, it seemed possibleeven likelythat Congress might authorize a broad bipartisan investigation of what happened to foster the violence that day. Five months later, though, that hope feels distant. On May 28, the Senate failed to break a filibuster to create an independent commission on the causes of the riot, and overall, the outlook for a robust, definitive investigation seems grim.

In the absence of an outside inquiry, Congress has pursued a variety of investigative approaches. Individual House committees have begun investigations, and Speaker of the House Nancy Pelosi may decide that the best way forward is simply to have those panels continue that work. She has also floated forming a select committee to investigate the attack or designating one specific panel to take the lead in the inquiry. But whatever Pelosi supports, it will likely face opposition from House Republicans.

For the Senates part, the strategy has been clearer from the start: the Senate Rules and Administration Committee and the Senate Homeland Security and Governmental Affairs Committee conducted a joint probe, and this week, they released their own joint report on the events of Jan. 6. The report is the first public document produced by committees in either chamber of Congress investigating the riotand it may yet be the only one. Elsewhere on Lawfare, Billy Ford has provided an in-depth summary of the document. Here, we take a look at what the report does and doesnt cover, and what those gaps say about our understanding of what happened on Jan. 6.

The document goes deep on what went wrong on Jan. 6but its less deep on the question of why things went wrong. Its focused on a relatively narrow timeframe, digging into how various agencies and the congressional bureaucracy fumbled the ball in the weeks before Jan. 6 and on the day itself. But it doesnt broaden its scope to examine the structural factors that might have led those organizations to fumble the ball, or examine the role of President Trump in whipping up rioters through his lies about a stolen election. Some of these limitations likely stem from the bipartisan nature of the report: Republicans, reporting from the New York Times and Washington Post suggests, were none too eager to delve into Trumps responsibility for the violence. And other limitations trace back to the fact that this report is the product of an investigation by only one chamber of Congress, with limited cooperation from key actors in the House of Representatives.

The document, in other words, is both a useful recordand profoundly incomplete.

The committees sketch out a grim picture of the cascading institutional failures both within and beyond Congress. The failures within the congressional bureaucracy laid out by the report are severaland began even before Jan. 6. The U.S. Capitol Police (USCP) did not, the report makes clear, effectively use the intelligence gathered by its three intelligence-related components to track the threat to the Capitol Complex. The report identifies sharing intelligence information as a particular weak spot, both within and beyond the USCP. The entity with primary responsibility for distributing intelligence reports, the Intelligence and Interagency Coordination Division (IICD), produced conflicting products prior to Jan. 6, and some key informationincluding a now-famous bulletin sent out from the FBIs Norfolk field office on Jan. 5, noting internet posts describing potential violence the next day did not make its way to all relevant parties within the USCP.

Intelligence agencies other than the Capitol Police also failed to communicate the seriousness of a potential attackeven as the planning for that attack was happening, in part, in plain sight on social media. The bulletin from the FBIs Norfolk field office appears to be the only intelligence document produced by the bureau warning of the danger. The Department of Homeland Security, which has its own intelligence analysis arm, meanwhile, never produced any document flagging the potential violence.

The committees seem to be keenly aware of just how absurd it is for executive agencies to claim ignorance of threats posted prominently online. The report quotes one official at the Department of Homeland Securitys Intelligence & Analysis unit saying that he was not aware of any known direct threat to the Capitol before January 6, before dryly noting that this was despite many online posts mentioning violence.

The report also details failures by the USCP to develop sufficient operational and staffing plans for Jan. 6, as well as inadequate training and equipment for officers. On Jan. 6 itself, the report details, there were significant communication failures within the USCP, with rank-and-file officers receiv[ing] little-to-no communication from senior officers during the attack and at no point did USCP leadership take over the radios to communicate with front-line officers.

But the failures outlined in the report are not limited to the USCP. Among the most troubling sections of the report is the discussion of why it took as long as it did for National Guard troops to arrive at the Capitol after USCP requested support. The members of the Capitol Police Board, the reports states bluntly, did not understand the statutory and regulatory authorities of the Capitol Police Board.

Michael Stenger, the former Senate Sergeant-at-Arms, described the board as a clearinghouse of information rather than as an operational bodydespite the fact that the board has responsibility for important operational decisions. The board may request support from executive departments and agenciesincluding the National Guardbut none of the Capitol Police Board members on Jan. 6 could fully explain in detail the statutory requirements for requesting National Guard assistance and there was no formal process for such requests. Board members confusion about the process extended to uncertainty about how many of their votes were required to approve such a request. Stenger asserted that unanimity was needed, while Architect of the Capitol J. Brett Blanton (with whom the possibility of requesting Guard support prior to Jan. 6 was not discussed) posited that only a majority vote was necessary. (Notably, the report itself does not clarify the answer to this question, but among its recommendations is to empower the USCP chief to make independent requests for Guard assistance in emergencies.)

The report outlines how lack of clarity between the Defense Department and the Capitol Police over the procedures for requesting deployment of the Guard contributed to the crucial delays in the Guards arrival on the sceneand confusion and delays at the Pentagon resulted in a three-hour gap between when Capitol Police first requested the deployment of the Guard and when the Guard actually showed up at the Capitol. And excerpts from committee interviews with Christopher Miller, the acting secretary of defense on Jan. 6, and Ryan McCarthy, secretary of the Army on that date, suggest that the Pentagon was skittish about deploying military forces to the Capitol after the debacle of the National Guard deployment to Washington, D.C. in summer 2020 to respond to the protests over George Floyds death.

Meanwhile, the Justice Department, despite having been designated by the White House as the lead agency in charge of coordinating operations to secure Congress that day, appears to have been almost entirely absent from security planning or response. According to one Pentagon official interviewed by the committees, the department failed to conduct any interagency rehearsals or have an integrated security plan, as DOJ did during the summer 2020 protests when it had also been designated as the lead federal agency. Former Acting Defense Secretary Miller told the committees that he convened calls between agencies in the midst of the chaos because the Justice Department was nowhere to be found: [S]omebody needed to do it. This failure is all the more notable because the Justice Department itself denied to the committees that it was ever placed in chargeand, according to the report, has yet to fully comply with the Committees requests for information.

So the report provides a damning account of security and intelligence failures across the board. But theres also a lot that the document does not do. In emphasizing the immediate period leading up to Jan. 6, it does not discuss a longer history of what created the conditions that allowed for the operational failures. The report does quote one USCP officer as observing that 1/6 was not only a result of a few months of intelligence not being analyzed and acted upon, but more so decades of failing to take infrastructure, force protection, emergency planning, and training seriously. But the report does not address how the USCP was allowed to fall short for those decades. Is a lack of congressional oversight to blame and, if so, what changes to Congresss own approach to holding its security bureaucracy accountable are needed? The report offers no answers to those important questions.

It is also telling that the report stops short of recommending a full restructuring of the Capitol Police Board, despite previous efforts and recent bipartisan interest in doing so. It is widely believed that congressional leaderswho nominate two of the members of the board, the House and Senate Sergeants-at-Arms, to their positionsare reluctant to change the forces governance structure. But as Congress moves forward, it must consider whether the current bureaucratic arrangements are the most effective ones for ensuring the Capitol Hill community is safe, for the thousands of members and staff who report to work there each day.

And the report demonstrates the inherent shortcomings of an investigation done by, and recommendations for reform made by, committees in a single chamber of Congress. Take, for example, the relatively brief discussion of shortcomings in the security notifications received by senators and Senate staff. Primary responsibility for security notifications to Senators and Senate staff, the report notes, resides with the Senate SAAwho did not send any Senate-wide email alerts during the attack itself. The USCPs email notifications were more numerous, but more than half of them were sent prior to the breach of the Capitol; the USCP also sent the same message, directing individuals to shelter in place, four times between 2:18 pm and 6:44 pm without adding any additional information or context. The report is silent, however, on the experience of House members and staff with House-specific communications. Indeed, while the House Sergeant-at-Arms office is included on the list of entities from which current and former officials'' participated in interviews as part of the probe, the office itself did not comply with the Senate committees request for information.

While the report is damning in its description of how the intelligence agencies did not effectively seek out and use intelligence in advance of the riot, it doesnt provide answers to some of the obvious questions that arise from that description. Why, for example, was the bulletin from the Norfolk field office the only document the FBI produced warning of danger on Jan. 6?

Or, take the statement by then-FBI Assistant Director Jill Sanborn, quoted in the report, that the FBI was not aware of threats made on social media before Jan. 6 because we cannot collect First Amendment-protected activities in the absence of a preexisting investigation. When Sanborn made this comment at a Mar. 2 Senate hearing, it was the subject of a great deal of skepticism from commentators familiar with the FBIs investigatory practices. And indeed, internal FBI guidelines state that FBI employees may conduct Internet searches of publicly available informationthe definition of which would include public social media postsprior to the initiation of a formal investigation. But the Senate report quotes Sanborn without addressing this discrepancy or explaining what the bureaus authorities actually are when it comes to monitoring online posts, even though this would seem to be an important factor in understanding the FBIs failure to prepare for Jan. 6.

This points to another, deeper hole in the committees analysis. The report discusses egregious failures by various agencies, but it doesnt examine the larger structural factors that created an environment where those failures could take place. Why might it be that the FBI, Department of Homeland Security and Capitol Police were so willing to discount the potential threat posed by a group of largely white Trump supportersespecially compared to the federal governments aggression toward peaceful Black Lives Matter protestors during the summer of 2020? To what extent did they overlook that danger because they did not want to cross the president? For that matter, to what extent was the Justice Departments strange silence during the riot itself a result of the departments desire to placate the president?

These questions will be difficult to answer without a more sustained inquiry into, among other things, the role of Trump and the White House in the events surrounding Jan. 6. And that hurdle may be exactly why they arent addressed in this report. The document is a product of a bipartisan investigation by two Senate committeesand according to the New York Times, that bipartisanship shaped what the committees did and didnt include. As the Times notes, the report does not chart [Trumps] actions or motivations, state that his election claims were false or explore the implications of a president and elected leaders in his party stoking outrage among millions of supporters." This explains one of the odder design choices in the reports presentation: Trumps remarks at the Ellipse immediately preceding the riotAnd we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.are included in an appendix at the end of the report, but they are not discussed at any length in the body of the document. They are referenced with little detail as part of the timeline of events; President Trump began his address just before noon, the report notes, and during the next 75 minutes, the President continued his claims of election fraud and encouraged his supporters to go to the Capitol.: Essentially, the report just tries to stay as far away from Trump as possiblea tricky task when chronicling a riot that the president sparked with his rhetoric and which he egged on while it was happening.

Given these unanswered questions, Congress must decide what to do next. The Senate committees that produced this report have pledged to keep investigating, including continu[ing] to pursue responses from the agencies, offices, and individuals who did not cooperate with the committees prior requests. But recent experience shows that recalcitrant actors can effectively slow walk committees efforts to obtain information.

The lack of full cooperation from the House Sergeant-at-Arms also illustrates the need for the House to continue its own inquiry. Up to now, this investigative work has involved hearings by four separate panels (the Legislative Branch subcommittee of the Committee on Appropriations; the Committee on Oversight and Reform; the Committee on Homeland Security; and the Committee on House Administration) and letters sent singly or jointly by these committees and five more (House Intelligence; House Judiciary; House Armed Services; and the Subcommittees on the Department of Defense and on Interior, Environment and Related Agencies of the House Appropriations Committee). The dispersed nature of the Houses investigationparticularly in contrast to the joint committee nature of the Senatesis one reason many have pushed for Pelosi to create a select panel in the House to serve as focal point for the inquiry. These calls have intensified in the wake of Senate Republicans tanking legislation to create an independent commission to investigate the insurrection to advance in the Senate.

While supporters of a commission have made clear that this report is not a substitute for an independent inquiry, getting one approved will remain a steep uphill battle. Senate Majority Leader Mitch McConnell took the occasion of the reports release to reiterate his opposition to such an inquiry, saying that he was confident in the ability of existing investigations to uncover all actionable facts about the events of Jan. 6. The Senate report does show that existing congressional committees are capable of serious investigation and reflection on what happened on Jan. 6but it also demonstrates the limitations of those investigations as they currently stand.

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The Successes and Limitations of the First Congressional Report on Jan. 6 - Lawfare