The U.S. government has a long history of blue-ribbon panels to investigate national calamities that become turning points in American history, from Pearl Harbor to the 1986 space shuttle Challenger disaster to the 2008 financial meltdown. Now the country confronts two cataclysmic events at once: the coronavirus pandemic and the national furor over racial violence and law enforcement that began with the killing of George Floyd.
Congress is hurrying to deal with the second crisis by writing laws to rein in abusive policing. But there is no obvious legislative fix to a global health emergency. So the common wisdom on Capitol Hill is that, eventually and perhaps soon, there will be a federal commission to investigate the coronavirus outbreak—more specifically, how the U.S. found itself so disastrously unprepared for a medical emergency that has left 120,000 Americans dead and devastated the economy, throwing tens of millions of people out of work. At least four pieces of legislation are circulating on Capitol Hill to create a virus commission, and two already have what currently passes for bipartisan support.
I spent more than five years researching and writing histories of the Warren Commission, which investigated J.F.K.’s assassination, and the 9/11 Commission, interviewing many of the principals involved. And so, may I offer a little advice about how the virus commission, whatever it’s finally called, might be organized?
First, and most importantly, the commission must be seen as truly independent. Its members should have none of the conflicts of interest that have dogged similar investigations in the past. For obvious reasons, the members should include distinguished physicians and public-health experts. At least one or two of the commissioners should be veteran career prosecutors, who know the difference between the gross incompetence of government officials and criminal liability. The commission should have subpoena power—and be ready to wield it.
Given the near-total collapse of bipartisanship in Donald Trump’s Washington, the commission should not include sitting senior government officials—certainly no members of Congress or current or recently departed federal officials—and at the risk of stating the obvious, no one related to the president. A virus commission that included administration toadies such as Devin Nunes, or alleged virus profiteers such as Senators Richard Burr and Kelly Loeffler, would be instantly discredited. No one wants a Kushner Report.
Conflicts of interest damaged both the Warren and 9/11 commissions. Much as I came to admire the hotshot young lawyers who made up the Warren Commission’s staff and did most of its detective work, the investigation led by Chief Justice Earl Warren is properly remembered as a debacle—a rushed inquiry that spawned more conspiracy theories than it debunked. I’m convinced that Lee Harvey Oswald assassinated J.F.K., but the commission missed evidence that could have pointed to others who helped him.
Warren initially turned down the appointment, citing his day-to-day responsibilities on the Supreme Court. He was also badly conflicted by his undying loyalty to the late president; he thought of John Kennedy almost like a son. But Warren was emotionally blackmailed into taking the job by President Lyndon Johnson, who reduced Warren to tears in the Oval Office after warning him that his refusal might trigger World War III. During the investigation, Warren often put J.F.K.’s legacy first, even refusing, in deference to the Kennedy family, to allow the other commissioners and the staff to see the autopsy photos and X-rays, all but guaranteeing that the medical evidence would be bungled.
Another member, former C.I.A. head Allen Dulles, had even more outrageous conflicts. We know now that Dulles, who had been forced out of the agency after the Bay of Pigs fiasco, in 1961, kept plenty of secrets from the commission. Declassified documents released years later showed that the C.I.A., under Dulles’s leadership, had Oswald under active surveillance for years, including during his aborted defection to the Soviet Union, in 1959.
Four of the seven commissioners were sitting members of Congress. Three were so busy with their duties on Capitol Hill that they had almost no role in the investigation. The fourth—a fast-rising House Republican named Gerald R. Ford—often put party politics above his responsibilities to the commission. I was startled to learn that Ford, in a blatant effort to court favor with J. Edgar Hoover, actually offered himself up to the F.B.I. as its man on the inside—ready to tell all about what the panel was doing behind closed doors.
The commission should not include any sitting senior government officials—and at the risk of stating the obvious, no one related to the president.
The 9/11 Commission’s final report is still seen as the definitive account of the government’s intelligence blunders before the 2001 terrorist attacks. But its conflicts were serious—if less so than the Warren Commission’s—and often hindered its work.
Its 10 members did not include current government officials or sitting members of Congress. But a Democratic member, former deputy attorney general Jamie Gorelick, helped direct counterterrorism policy at the Justice Department during the Clinton administration. That resulted in constant, bitter attacks on her work from Republican lawmakers and G.O.P.-friendly news organizations. Worse, the commission hired University of Virginia historian Professor Philip Zelikow to run the investigation even though he had been part of the Bush White House transition team on terrorism policy. It was fair to ask whether Zelikow helped put in place the White House counterterrorism operation that failed so miserably before 9/11.
Trump has used the term “witch hunt” to pre-emptively discredit any outside investigation of his administration’s actions—or, more precisely, inaction—in the lead-up to the coronavirus pandemic. But he might be well advised politically to appoint one. In any legislation creating the panel, he will almost certainly have influence on the choice of the commission’s G.O.P. members, meaning he might have at least some impact on the direction and tenor of the investigation even if he is ousted in the November election.
In the law creating the 9/11 Commission, President George W. Bush was given the right to choose the chairman (initially Henry Kissinger, later replaced by former G.O.P. governor Tom Kean of New Jersey). And while Bush at first fought the panel’s creation, apparently fearing the political damage it might do, some of the commission’s staff members came to believe that the investigation helped re-elect him in 2004. In seeking a unanimous report, the 9/11 Commission resisted any judgments about the performance of individual officials, including Bush, even as it identified catastrophic incompetence at the White House, the F.B.I., and the C.I.A.
A Democratic lawmaker who is sponsoring one of the proposals for a virus commission said in an interview that there was discussion of the idea of recruiting two ex-presidents—Bush and Bill Clinton—to serve as the panel’s co-chairmen. Other candidates, he said, would include Bill Gates, the Microsoft co-founder who has donated billions of dollars to global-health projects, including pandemic control, and whose prior warnings of a coronavirus-like pandemic have been circulating in recent months. (For the same reasons, Gates has also become the locus of conspiracy theories.)
In such partisan times, “we may need the ultimate credibility of ex-presidents,” said the lawmaker, who spoke on condition of anonymity for fear of antagonizing the current one. “If a Democrat like me suggests any of this publicly, Trump will just automatically shoot it down.” Asked if Barack Obama might be considered as one of the co-chairmen instead of Clinton, the Democrat snickered. “If Trump heard that, we’re talking a total nonstarter.”
Philip Shenon is the author of The Commission and A Cruel and Shocking Act
