It’s not surprising that the first round of subpoenas that the Jan. 6 committee sent out are being ignored. Not when former President Donald Trump all but instructed the four former officials in question to refuse to comply.
Trump’s favorite tactic when faced with potential legal consequences, especially from Congress, is to draw out the process in court, running out the clock until the danger has passed. It’s safe to assume that’s what he intends to do this time as well. The major difference between now and then is that Trump is no longer president. This time, the power and law are squarely against him — a fact that he and his cronies need to be reminded of without hesitation or delay.
The Associated Press reported Thursday that a lawyer for the former president has sent a letter to the potential witnesses, claiming that he means to assert executive privilege over any communications covered under the subpoenas. Two of the recipients — former White House chief of staff Mark Meadows and former Pentagon official Kash Patel — are so far “engaging with” the committee, the panel’s leadership said in a statement Friday. (Dan Scavino, who handled Trump’s social media strategy in the White House, as of Friday afternoon had managed to avoid being served his subpoena.)
But far-right podcast host Steve Bannon is taking his cues from Trump. “We will comply with the directions of the courts, when and if they rule on these claims of both executive and attorney-client privileges,” attorney Robert Costello wrote in a letter to the committee. “Since these privileges belong to President Trump, and not to Mr. Bannon, until these issues are resolved, Mr. Bannon is legally unable to comply with your subpoena.”
A couple of factors undercut that claim. First and foremost: Bannon was not in the executive branch during the time frame in question. At most, Trump’s missive would cover any communications that Bannon had with the White House or other members of the executive branch. What that doesn’t cover is the entirety of the subpoena’s request. Bannon was a key player in promoting the Jan. 6 rally that preceded the attack on the Capitol, and he is still telling his audience that Trump could be “reinstated.” Claiming a blanket inability to comply with Congress’s request is ludicrous.
Moreover, the Biden administration isn’t defending the executive privilege that Trump claims in some of the broadest requests from the Jan. 6 committee. NBC News was the first to report Friday that the White House gave the all-clear for the National Archives to turn over documents and communications related to the committee’s work. President Joe Biden “has determined that an assertion of executive privilege is not in the best interests of the United States, and therefore is not justified as to any of the documents,” White House counsel Dana Remus wrote in her letter to the archives’ administrators.
Finally, executive privilege is not a get-out-of-jail-free card, especially not for a former president. While federal law and Supreme Court rulings give ex-presidents the right to review documents for potentially privileged material, there’s nothing on the books about what happens if the sitting president orders those materials to be delivered. And previous case law requires that the documents requested be “demonstrably critical to the responsible fulfillment of the Committee’s functions,” which is a pretty easy one for the Jan. 6 committee to argue.
Here’s the thing though: Trump probably doesn’t know any of that, and he definitely doesn’t care. The actual scope of the executive privilege is less important than the fact that, as his lawyer said, he is “prepared to defend these fundamental privileges in court.” All that matters to him is that enough people can pretend that there’s a serious, altruistic reason that Congress can’t get documents it wants that a legal challenge seems at least semi-credible.
This is why he is objecting specifically to about 40 or so records that the National Archives has provided him for his review, his lawyer asserted late Friday afternoon. Trump also pre-emptively asserted executive privilege over other documents in the request from Congress that he hasn’t had time to review. Biden will almost certainly repeat his order to ignore Trump — but any suit that the former president files to defend that claim will invariably eat up time, even if the courts rule against him.
And therein lies the problem. Committee chair Rep. Bennie Thompson, D-Miss., has said that he hopes to wrap up by early next year, which is not very long from now. And if the GOP retakes the House in 2023, any ongoing investigations will assuredly be scrapped. Every day, week, month that’s spent where Congress is left in the dark is another step toward Trump dodging consequences for his actions — again.
Thompson and committee vice chair Rep. Liz Cheney, R-Wyo., said in their statement Friday that “we will not allow any witness to defy a lawful subpoena or attempt to run out the clock, and we will swiftly consider advancing a criminal contempt of Congress referral." That’s great news — but it also takes time for a U.S. attorney to prosecute a contempt case in the federal courts.
The House should proceed forward with its contempt referral for Bannon swiftly should he remain defiant. But it should also consider acting using a rarely used power: inherent contempt. While in the modern age Congress has relied on the Justice Department to enforce a criminal contempt statute, the Supreme Court has previously upheld the legislative branch’s “independent and unilateral authority to arrest and detain individuals in order to compel compliance with a subpoena.” Under this scenario, the House sergeant-at-arms could be ordered to arrest Bannon and bring him to the Capitol until he agrees to provide the requested testimony.
Would that be a huge escalation and lead Congress into uncharted waters? Yes — except for the fact that we’re already in uncharted waters here. There’s never been a situation that’s involved a then-sitting president orchestrating a complete reversal of an election he’d lost. We’ve never had a time when that person could still retake power in the next election, thanks to an acquittal in an impeachment trial. And we’ve never had as clear a crisis for democracy’s future as now, when that former president is still encouraging his supporters to remove any barriers that previously stood in his way.
That all means that Trump can’t be allowed to slow roll this investigation. His followers can’t be allowed to subvert the will of Congress, which was elected to be the people’s representatives. And Congress and the Justice Department alike need to do everything in their ability to extract the information they need to safeguard our next elections.