Investigators on the House’s January 6 select committee, vowing a deep dive into the attack on the US Capitol, may soon be confronted with a grim reality: A battle over subpoena requests and the prospect they could end up in protracted legal fights.
Both Democrats and Republicans on the select committee say they want to obtain all the communications at the White House and conversations with Donald Trump that occurred surrounding January 6, but there’s an expectation they won’t get much cooperation from the former President, his former White House aides and his allies in Congress who have blasted the investigation.
At the same time, they did get a significant boost this week when the Biden Justice Department formally declined to assert executive privilege over testimony related to January 6, telling former DOJ officials in a letter they were free to provide “unrestricted testimony.” But whether former Trump White House officials could be protected by executive privilege remained unclear.
The DOJ decision means the committee could get officials to testify like former acting Attorney General Jeffrey Rosen and former Attorney General William Barr, who were at the center of Trump’s efforts to pressure the Justice Department to support his false claims of election fraud.
The committee has been in touch with Rosen and other former DOJ officials, according to a source familiar with the communications.
House Select Committee Chairman Bennie Thompson wasted little time after Tuesday’s high-profile opening hearing to signal that his panel would soon begin issuing subpoenas to obtain testimony and documents, as his committee eyes phone records and other documents from the Trump administration.
On Wednesday, Thompson told CNN the DOJ decision should speed up the committee’s work. “It’s very helpful. It minimizes a lot of potential roadblocks that could have been put in the way,” the Mississippi Democrat said.
But the committee may have a harder time securing testimony from Trump and aides such as former White House chief of staff Mark Meadows, as well as House Minority Leader Kevin McCarthy and GOP Reps. Jim Jordan of Ohio and Mo Brooks of Alabama. Even if the Biden administration doesn’t intervene, Trump could still try to go to court to stop the select committee from obtaining documents and testimony from the Trump White House by attempting to assert privilege, an effort that could delay the probe.
Officials could also defy congressional subpoenas as they did frequently during the Trump administration.
Asked by CNN Wednesday if he would testify before the select committee, Brooks said, “I’m not playing that game with you.”
Jordan on Wednesday said, “I’ve got nothing to hide,” when asked if he would testify, but suggested that if Democrats tried to subpoena him, Republicans could respond by trying to depose Democrats like California Reps. Adam Schiff and Eric Swalwell should Republicans take the majority next year.
“If they cross that bridge, they’re opening up a whole new (standard),” Jordan told CNN.
Asked about the prospect of Trump going to court to stop his committee’s subpoenas, Thompson said, “That’s his decision. The committee is committed to getting all the facts and evidence that’s available and we’ll go to whatever effort and length available to us to get it.”
Committee members said Wednesday they were prepared to try to overcome whatever obstacles Trump may try to throw their direction.
“He’s a very litigious person, so he can do what he wants,” said committee member Zoe Lofgren of California, who was part of the House Judiciary Committee’s court battles with the Trump administration.
GOP Rep. Liz Cheney downplayed the potential that the January 6 select committee could get tied up in a legal fight over subpoenaing Trump and his associates.
“Look I think that we absolutely, we’ve got to make sure that we get to every piece of information that matters,” she told CNN. “And I think the speaker has been very clear that — and the chairman — that we’re going to issue subpoenas quickly. That we’re gonna enforce those subpoenas, and I think we’ve gotta make sure that the facts — that we follow the facts.”
And Rep. Pete Aguilar, a committee member, said that the DOJ decision not to assert executive privilege over former Trump DOJ employees — like Rosen and Barr — opens the door to getting such testimony quickly.
“We’re going to continue to pull that thread and find out everything we can. There’s a variety of public information that is already out there within the indictments within the testimonies that has been given to House and Senate committees, so we’ll continue to comb through that and develop a work plan,” Aguilar, a California Democrat, said.
The Justice Department notified former officials in a letter Monday that they could give testimony related to January 6 that was “irrespective of potential privilege,” saying that the “extraordinary events in this matter constitute exceptional circumstances warranting an accommodation to Congress in this case.”
The letter was written in response to a request from the House Oversight and Senate Judiciary committees asking DOJ to allow some former officials to testify about their interactions with Trump and other White House officials, and the select committee could seek similar testimony.
The letter also said that the Justice Department consulted with the White House counsel’s office and that President Joe Biden decided it would not be appropriate to assert executive privilege for “communications with former President Trump and his advisers and staff” related to January 6, suggesting the administration could side with the committee when it seeks White House records. But the letter noted that the Biden administration’s position was “notwithstanding the view of former President Trump’s counsel” on executive privilege, acknowledging the former President could intervene.
Many of the committee members are no strangers to court battles with Trump over subpoenas. It took the Judiciary panel two years of litigation before reaching an agreement with former White House Counsel Don McGahn to testify in June. Lofgren said she was hopeful that the DOJ decision would expedite the process for the select committee.
“A lot of the assertions made by the prior president ended up being invalid, but it took a long time to litigate. So cutting to the chase and saying it’s not valid does help,” she said.
At the select committee’s first hearing, the focus of the testimony was on four officers who served on the front lines of January 6. But Thompson and other committee members signaled they plan to turn their sights to what was going on inside the Trump White House.
Schiff, another committee member, said the “committee was conferring on next steps” and was working to develop the correct sequencing for the investigation.
Thompson said this week that he’s eyeing holding another hearing in August while the House is out of session, though he hasn’t said yet what the topic may be or who might testify.
But Thompson told CNN after Tuesday’s hearing that the committee would go straight to issuing subpoenas, skipping the step of voluntarily asking for information, in an effort to speed up the process that was often drawn out when other House committees sought information from the Trump White House.
“Letters just lengthen the time,” Thompson said. “We just want to get it all done.”
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