The committee investigating the January 6 attack on the US Capitol had a big week.
Key decisions were made that not only cemented the tone of how the committee has chosen to operate, but also brought future roadblocks further into focus.
Here’s what last week tells us about the investigation:
1. They are making an example of Steve Bannon — but don’t expect a resolution any time soon
When Trump ally Steve Bannon made clear he was not going to comply with his subpoena, the committee moved swiftly to take a critical step towards holding him in criminal contempt.
“The Select Committee will not tolerate defiance of our subpoenas, so we must move forward with proceedings to refer Mr. Bannon for criminal contempt,” Democratic Rep. Bennie Thompson, a Mississippi Democrat who serves as the chair of the committee said in a statement on Thursday.
Bannon was advertising his opposition to the committee in the days leading up to his scheduled deposition. His lawyer wrote a letter to the committee saying that Bannon will not be providing testimony or documents until the committee reaches an agreement with former President Donald Trump over executive privilege or a court weighs in on the matter.
“That is an issue between the committee and President Trump’s counsel and Mr. Bannon is not required to respond at this time,” his attorney Robert Costello wrote the day before Bannon was set to testify.
The committee’s decision to officially move forward with criminal contempt on Bannon underscores how it views criminal contempt as a tool to expedite getting the information they need to move forward with their investigation, or at least showing there are consequences for witnesses that don’t cooperate.
“We think Steve Bannon has information that is germane to what happened on January 6th, and if he refuses the subpoena like we expect him to do, then we are left with no other choice then to ask the Department of Justice to lock him up, hold him in contempt, and clearly that might send enough of a message that he will agree to talk to us,” Thompson added.
But even though the committee is officially moving forward with criminal contempt on Bannon, there is still a long process that needs to play out.
The committee will meet on Tuesday where it will adopt a contempt report, which outlines the efforts the committee made to get a witness to comply with the subpoena, and the failure by the witness to do so.
This report is then referred to the House for a vote. If the vote succeeds, House Speaker Nancy Pelosi certifies the report to the United States attorney for the District of Columbia. Under law, this certification then requires the United States attorney to “bring the matter before the grand jury for its action,” but the Justice Department will also makes its own determinations for prosecuting. The case then heads to trial.
Any individual who is convicted of contempt of Congress is then guilty of a crime that may result in a fine and between one and 12 months imprisonment. But this process is rarely invoked, and rarely leads to jail time.
As severe as a criminal contempt referral sounds, the House’s choice to use the Justice Department may be more of a warning shot than a solution. Holding Bannon in criminal contempt through a prosecution could take years, and historic criminal contempt cases have been derailed by appeals and acquittals.
2. The select committee is pushing hard for witnesses and documents, and they want everyone to know how aggressive they’re being.
The committee has a few options at their disposal when it comes to handling individuals who defy their subpoenas. But members on the committee made clear last week that they are unified in believing that criminal contempt is their best and fastest option.
Thompson described the criminal contempt route as getting the committee what they need “in the shortest period of time” on CNN’s “The Situation Room.”
“If the negotiations fail, then we will not hesitate one bit on moving on a criminal or civil referral on this matter,” Thompson added, describing the committee’s perspective more generally.
And Thompson said the moves the committee made on Bannon are just the beginning when it comes to how the committee will deal with those who do not cooperate.
“Just as we are pursuing the criminal contempt on Steve Bannon, it is just the beginning,” Thompson said. “You will see more of this type of work coming.”
Thompson also made clear that no one is off limits to be subpoenaed, including Trump himself.
“If former President Trump thinks he can get away with what happened on January the 6th by being cute with his press releases, then he has another thing coming” Thompson said Thursday.
“His attempt to deflect our work will not work,” Thompson added. “I assure the public that at the end of the day the committee expects full cooperation from everyone that we subpoenaed.”
Even before the committee took official action on Bannon, members were telegraphing their belief that criminal contempt should be the next step for anyone who defies a subpoena.
“I think we are completely of one mind that if people refuse to respond to questions, refuse to produce documents without justification that we will hold them in criminal contempt and refer them to the Justice Department,” Rep. Adam Schiff, a California Democrat and committee member, told CNN earlier in the week.
Rep. Liz Cheney of Wyoming, one of two Republicans on the panel, echoed that sentiment, telling CNN, “the committee is completely in solidarity” on the decision to move quickly on pursuing criminal contempt charges for those who evade subpoena deadlines.
“People will have the opportunity to cooperate, they will have the opportunity to come in and work with us as they should,” Cheney said. “If they fail to do so, then we’ll enforce our subpoenas.”
3. It won’t necessarily be easy for the House. Trump is trying to claim privilege, Congress’ power has limits and the clock to the midterm elections is ticking.
On top of the limitations Congress has to enforce subpoenas, the committee is also running into road blocks with where the lines of executive privilege are going to be drawn.
So far, the committee is seeking documents from the Trump presidency that are held by the National Archives — and so far the Biden White House hasn’t attempted to keep any confidential. But Trump’s legal team plans to try to keep about 40 records in the archives confidential by claiming the former President can assert executive privilege. Courts haven’t completely decided how much say Trump can have, and he does have an opportunity to sue in the coming weeks.
And with this shaping up to be a showdown between Trump and the Biden White House, the timing of these legal battles could weigh heavily on the fast approaching midterm elections with the committee investigating January 6 getting stuck in the political cross hairs.
Trump indicated last week that he will try to assert executive privilege to prevent the committee from getting information from certain witnesses.
On Wednesday, the White House formally rejected that request to assert executive privilege to shield from lawmakers a subset of documents that the committee had requested, and set an aggressive timeline for their release.
The letter sent Friday from White House counsel Dana Remus to Archivist of the United States David Ferriero requests that the documents be released “30 days after your notification to the former President, absent any intervening court order.”
Schiff reacted to the decision from the White House on CNN, stating, “I think it’s very, very positive that the Biden administration recognizes that these are unique circumstances.”
As part of their sweeping investigation, the committee has sent requests to a number of government agencies including the National Archives, which is the custodian of the Trump administration White House records.
The committee has asked for “all documents and communications within the White House” on that day, including call logs, schedules and meetings with top officials and outside advisers, including Trump attorney Rudy Giuliani.
The result of these deliberations between Trump’s legal team and the Biden White House will determine what information the committee gets access to.
On Thursday, Thompson said on CNN that the committee had not heard directly from the former president’s legal team outside of public statements. And Thompson conceded that the deliberations over executive privilege will determine what the committee is able to find out.
“I appreciate the White House agreement to look at executive privilege and give us consideration on a lot of the information we want. A lot of what we decide on former President Trump is dependent on what we find in this information,” Thompson said.
These deliberations, as Thompson described it on Thursday, are “kind of cumbersome.”
4. Jeffrey Clark emerging as key figure as probe wades into Trump’s efforts to overturn election
Last week, the committee also subpoenaed Jeffrey Clark, a Justice Department official who was integral to helping Trump in his efforts to overturn the 2020 presidential election, the committee announced Wednesday.
Clark, a Trump-appointed environment law chief at the Justice Department, has become a major figure in the emerging narrative about behind-the-scenes efforts by Trump and his closest allies to orchestrate a leadership coup at the Justice Department and peddle lies about election fraud.
Thompson described the testimony from Clark on CNN as “very essential,” adding “we need to hear from him.”
On the same day the committee issued its subpoena to Clark, it also held an in-person meeting with former acting Attorney General Jeffrey Rosen that lasted about eight hours, according to a person familiar with the matter. Rosen served in the role during the final days of the Trump administration.
Both moves underscore that the panel is interested in learning more about how Trump attempted to pressure top officials to investigate claims of election fraud during the former President’s final days in office — an issue the committee has said is a focal point of its sweeping probe into the events around January 6.
Clark and Rosen were featured heavily in a recent report issued by Democrats on the Senate Judiciary Committee that highlighted the relentlessness of Trump and some of his top advisers as they fixated on using the Justice Department to prop up false conspiracy theories about the election.
While Thompson previously said the panel considers the Senate report a helpful resource in its investigation, the committee is now making clear it wants to hear from the former DOJ officials directly.
The select committee has already interviewed Rosen’s former deputy, Richard Donoghue.
Describing the testimony that Rosen gave, Thompson said,”The eight hours of testimony … more or less validated what the Senate report said. So, the investigators on our staff pursued any and all questionings and they feel very solid that the information we have, both from the witness and the Senate hearing is solid.”
5. There are still a lot of questions about where this investigation is headed and whether the committee can meet high bar set for itself.
The committee has had a tall task since it embarked on its investigation.
Their paper trail and who they are subpoenaing outline just how broad this investigation is truly becoming. Between finding out what really happened in the lead up to January 6, to understanding what role Trump and his orbit played, to unpacking how lies peddled about election fraud fueled the violence, there are endless roads this committee could go down.
And with multiple subpoenas issued, the committee’s fight over compliance could just be beginning. Bannon received his subpoena along with three other Trump loyalists: former White House chief of staff Mark Meadows, former deputy chief of staff Dan Scavino, and Kash Patel, a former chief of staff to then-acting Secretary of Defense Christopher Miller who had also served as an aide to Republican Rep. Devin Nunes.
The committee agreed to postpone deposition deadlines for Meadows, Scavino and Patel to give them more time for negotiations, but the committee says their patience is limited.
On top of that, the committee has deadlines coming up next week for subpoenas they issued to individuals involved in the planning and organization of the “Stop the Steal” rally that served as a prelude to the riot at the US Capitol and other rallies organized in the lead up to the day of the attack.
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