The House select committee investigating the Jan. 6 attack on the U.S. Capitol has issued subpoenas seeking testimony and documents from four Trump administration officials: former presidential adviser Steve Bannon, former chief of staff Mark Meadows, former deputy chief of staff Dan Scavino and former Pentagon official Kash Patel.
The committee sent all four men letters making clear each has information “relevant to understanding important activities that led to and informed the events at the Capitol on January 6, 2021, and relevant to former President Trump’s activities and communications in the period leading up to and on January 6.” These subpoenas likely will set off a chain of events that will say much about the pace and direction of the committee’s investigation but also about the future health of our democracy.
During Donald Trump’s time as president, congressional subpoenas seemed to have been viewed by executive branch officials as something akin to party invitations that could be accepted or rejected with little or no consequence. When subpoena recipients weren’t ignoring lawfully issued congressional subpoenas entirely, they were challenging the subpoenas in court, making baseless claims of nonexistent privileges and immunities and weaponizing the delay built into the court system in an attempt to run out the clock. Former White House counsel Don McGahn battled a congressional subpoena in court for more than two years and ultimately won the war of attrition.
With this new round of congressional subpoenas, we will now see if Congress and the courts have learned anything from that time or if they will again let witnesses ignore their subpoenas or exploit court delays in an effort to run out the clock.
Here are some of the issues that will arise as a result of these four subpoenas.
Some of the individuals may assert a claim of executive privilege in an attempt to defeat the subpoena. Indeed, Trump has already threatened to invoke executive privilege to block the select committee’s subpoenas. Unfortunately for Trump, Biden, not any former president, makes the ultimate decisions regarding executive privilege questions.
Second, executive privilege does not apply to anyone who was a private citizen at the time he or she was speaking with the president. Bannon was a private citizen on and around Jan. 6, a second reason an executive privilege claim to block his testimony will fail.
Third, although it has not been directly tested in the courts, there is a strong argument that if the evidence or testimony sought by a congressional subpoena contains evidence of crime (such as plotting and executing an attempted overthrow of our democracy), then the crime-fraud exception trumps any privilege asserted to try to keep the evidence under wraps.
If witnesses refuse to honor the subpoenas, will Congress use all the tools at its disposal to aggressively enforce compliance? There are three ways Congress can enforce its subpoenas: through civil enforcement, criminal contempt and through its power of inherent contempt.
Civil enforcement involves Congress going to court to begin the long, inefficient process of litigating the enforceability of subpoenas. This approach failed spectacularly when Congress used it in an attempt to force McGahn to testify about what Volume II of the Mueller report called Trump’s possible obstruction of justice. McGahn weaponized long court delays, successfully ran out the clock and was never compelled to testify.
The criminal contempt approach relies on the assistance of the Department of Justice to pursue a criminal contempt case in court to force compliance with congressional subpoenas. This was not a viable option when Trump was president and William Barr was attorney general because Barr was far more interested in protecting Trump than assisting Congress in securing testimony that might have incriminated Trump. In a Biden administration with Attorney General Merrick Garland in charge, criminal contempt is back in play as an enforcement option.
The Supreme Court emphasized the importance and value of Congress’ contempt power in 1821 when it ruled that Congress’ power to “hold someone in contempt is essential to ensure that Congress is not exposed to every indignity that rudeness, caprice or even conspiracy may make against it.” In the 1920s, Congress arrested and confined Mally Daugherty when he ignored a subpoena in connection with the Teapot Dome scandal, and the next decade it used its inherent contempt power to arrest William MacCracken, an aviation industry lawyer involved in the divvying up of airmail contracts by the U.S. Post Office. The Supreme Court reaffirmed then that Congress was within its power to compel MacCracken’s testimony and arrest him for defiance.
Congress’ refusal to deploy its inherent power of contempt during the Trump years left our republic weak and susceptible to attack from within. With the future of our democracy at stake, it is time for Congress to leave timidity at the chamber doors and compel witnesses to testify about their knowledge of the incidents leading up to and culminating in the Jan 6. attack on the U.S. Capitol.
The four witnesses who have been subpoenaed may very well have criminal exposure for their role in the planning and execution of the attack on the Capitol. For example, Bannon has confirmed a report that, in a Jan. 5 war-council-like meeting, he told Trump, “It’s time to kill the Biden presidency in the crib.” Those are the words of sedition, and it’s hard to imagine any attorney in their right mind letting Bannon run the risk of incriminating himself.
Accordingly, there is a strong likelihood that these men may invoke their Fifth Amendment right against self-incrimination and refuse to testify. This will set off yet additional legal wrangling involving whether Congress should grant any or all witnesses immunity. If they do, it makes the prospect of a later successful criminal prosecution of these men more challenging. But that is a topic for another day. The legal wrangling over House select committee subpoenas has just begun.