Dem senator, GOP witness clash over Jan. 6 as attack looms over reopening Capitol

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Sen. Chuck Grassley, R-Iowa, tells Shannon Bream that Supreme Court nominee Judge Ketanji Brown Jackson's records were withheld on 'Fox News @ Night.'

More than a year after the Jan. 6 assault on the Capitol by a mob of Trump supporters, the attack earned a mention in a Supreme Court confirmation hearing Thursday as the shadow of that day still hangs over Congress. 

Sen. Sheldon Whitehouse, D-R.I., brought up the attack on the final day of hearings for Supreme Court nominee Ketanji Brown Jackson. She was not present Thursday after two marathon days of testimony. But Republicans and Democrats each called outside witnesses to testify on whether Jackson should sit on the Supreme Court. 

Whitehouse went off-topic toward the end of his questioning, grilling GOP witness Alabama Attorney General Steve Marshall on whether he may have contributed to the attack on the Capitol.

"You were the chairman of the Republican Attorney General's Association and the Rule of Law Defense Fund in the run-up to the Jan. 6 assault on the Capitol," Whitehouse told Marshall. "Rule of Law Defense Fund sent robocalls urging recipients to march to the Capitol on Jan. 6. Were you personally present in Washington, D.C., on Jan. 6?"

Sen. Sheldon Whitehouse questions Supreme Court nominee Ketanji Brown Jackson during her confirmation hearing on Capitol Hill, Wednesday, March 23, 2022.  (AP Photo/Alex Brandon)

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Marshall said he was not. Whitehouse pushed further, asking whether either of Marshall's organizations had staff in Washington, D.C., at the time. 

"Can't speak to that. But senator, what I can tell you is that we've denounced lawlessness, not only as it's related to what took place on Jan. 6, but also the lawlessness that continues to go on across our country with violent crime," Marshall said. "And what I would hope is part of this hearing that this body is likewise questioning our nominee about her philosophy on criminal justice as it relates decisions she would make on the court." 

Whitehouse continued his line of questioning, pressing Marshall on whether he knew how the Rule of Law Defense Fund (RLDF) calls were funded. Marshall said he didn't. 

Then Whitehouse pressed Marshall to effectively apologize to the U.S. Capitol Police for the Jan. 6 attack, and to say if President Biden was legitimately elected. 

Steve Marshall, Alabama's attorney general, speaks during a Senate Judiciary Committee confirmation hearing for Ketanji Brown Jackson in Washington on Thursday, March 24, 2022. (Al Drago/Bloomberg via Getty Images)

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Marshall declined to do either. 

"As you sit here, you enjoy the protection of the Capitol Police officers who are here and who defended our Capitol against the assault on Jan. 6, by the crowd that your organization helped recruit," Whitehouse said. "Do you have anything to say to them, particularly to those who were injured in the line of duty on that day?"

"I object to the premise of your question that somehow or another, the organization that was connected with had anything to do with the violence took place," Marshall said. 

Whitehouse replied: "Is Joseph R. Biden of Delaware, the duly elected and lawfully serving president of the United States of America?"

"He is the president of this country," Marshall said. 

Trump supporters try to break through a police barrier at the Capitol in Washington on Jan. 6, 2021. (AP Photo/Julio Cortez, File)

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"Is he the duly elected and lawfully serving president of the United States?" Whitehouse said. 

Marshall replied: "He is the president of our country."

"Are you answering that, omitting the language 'duly elected and lawfully serving' purposefully?" Whitehouse said. 

"I'm answering the question," Marshall said. "He is the president of the United States."

Whitehouse also asked First Liberty Institute associate counsel Keisha Russell if she had any role in drafting a letter from former Assistant Attorney General Jeffrey Clark about the possibility of appointing new electors in Georgia. Russell, a GOP witness against Jackson, said she did not. 

Judge Ketanji Brown Jackson speaks during her confirmation hearing on Capitol Hill, March 23, 2022. (Anna Moneymaker/Getty Images)

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The exchange came as Jan. 6 and the 2020 election, which former President Donald Trump still falsely claims he won, remain sensitive topics on Capitol Hill. 

The Jan. 6 Committee is still conducting its investigation, including sending subpoenas to members of Trump's orbit. And with COVID-19 abating, the Capitol is beginning to reopen to the public, to cheers from most Republicans and to the chagrin of some Democrats. 

According to Politico, Capitol tour guides are anxious about restarting tours partially because the political environment is so toxic in the wake of the Jan. 6 attack. Politico reported the guides are waiting for instruction on how they should address the attack during their tours.

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The guides are also worried about a lack of Capitol Police officers to staff tour routes, according to Politico. The department's dealt with significant attrition since the attack. 

Fox News' Marisa Schultz contributed to this report.