Former President Donald Trump and his allies threaten to delay a House select committee from getting key information about the Jan. 6 attack on the Capitol — and the tools lawmakers have to fight back might not be enough.
The Jan. 6 Committee on Tuesday took its most serious step to enforce a subpoena, kicking off the process to hold former Trump adviser Stephen Bannon in criminal contempt of Congress for withholding information that it describes as “central to its investigative process.”
But that process, even if Bannon is successfully prosecuted and jailed, still wouldn’t force him to disclose the information, legal experts say. And a Trump lawsuit filed Monday means the committee’s request for documents from inside the White House and administration might go unfulfilled as the case winds its way through the court system, potentially to the Supreme Court.
The committee voted 9-0 Tuesday to adopt an amended report to recommend the House hold Bannon in criminal contempt of Congress for refusing to comply with a subpoena the panel has sent him demanding records and testimony.
“It is essential that we get Mr. Bannon’s factual and complete testimony in order to get a full accounting of the violence of January 6th and its causes,” Chairperson Bennie Thompson, D-Miss., said in a Tuesday statement. “Mr. Bannon stands alone in his complete defiance of our subpoena. That’s not acceptable. No one in this country, no matter how wealthy or how powerful, is above the law. Left unaddressed, this defiance may encourage others to follow Mr. Bannon down the same path.”
The panel’s vice chair, Wyoming Republican Liz Cheney, added that the moves by Bannon and Trump “suggest that President Trump was personally involved in the planning and execution of Jan. 6. And we will get to the bottom of that.”
Tuesday’s action by the select committee sets up a vote on the House floor. The chamber’s Democratic majority is expected to approve the contempt report, which would then be certified by Speaker Nancy Pelosi to the U.S. attorney for the District of Columbia. The U.S. attorney’s office would next be tasked with deciding whether to convene a grand jury.
If the grand jury were to indict Bannon, the matter would go to federal district court in D.C. for a trial and possibly an appeals process after that. If convicted, Bannon could face a fine and up to a year in prison for the misdemeanor of willfully failing to comply with a properly issued committee subpoena. After all that, panelists would still not be assured of getting the information they seek from Bannon.
“In terms of the criminal statute, which is what they’re using, that’s not a very effective way at all because that’s a punishment for refusing to comply,” said Stanley Brand, a law professor at Penn State University and a former House counsel. “That doesn’t yield you, necessarily, the information you want, particularly if it takes a year and a half to litigate a case through a trial and appeals.”
The path the committee is taking is used mainly to deter noncompliance and “a conviction does not necessarily lead to release of the information to Congress,” according to a Congressional Research Service report from 2019.
Civil enforcement of subpoenas is another route through which a committee can bring a civil lawsuit, and, if successful, a court would order disclosure of the information sought by the subpoena, according to CRS. But that has time constraints as well.
“It’s not as if the civil route is any quicker. It’s just, at the end of the day, you have a court order, potentially. … But that’s subject to appeal as well. The McGahn case went on for two years,” Brand said, referring to the congressional subpoena battle between Democrats and Don McGahn, who was White House counsel under Trump.
There is also the power of “inherent contempt,” which gives the chambers of Congress the authority to arrest and detain an individual obstructing the exercise of legislative powers until that obstruction is removed, a CRS report states. CRS also notes that this authority has not been used to enforce subpoenas since the 1930s.
A new wrinkle
Aside from the Bannon situation, the Jan. 6 committee has a fresh issue with the former president himself. Trump filed a lawsuit Monday in the U.S. District Court for the District of Columbia against the panel, saying that its request for White House records from his administration is illegal. Although Trump’s assertion of executive privilege might be moot because he is no longer president, the National Archives and Records Administration, or NARA, might delay releasing the information until the legal challenge plays out.
Bannon’s lawyer, Robert Costello, pointed to the lawsuit Monday in a request that the Jan. 6 committee delay the contempt of Congress vote for one week. Bannon had initially refused to comply with the panel’s subpoena for records and testimony, citing Trump’s assertion of executive privilege.
Thompson, in a tweet Tuesday, called Trump’s lawsuit “typical” and “nothing more than an attempt to delay progress.”
But such a strategy worked to a large degree for Trump during his broader “oppose all the subpoenas” stance in congressional investigations, with the resolution of the McGahn subpoena pushed off until after the political moment had passed.
And that strategy could again work in Trump’s favor, legal experts say, although courts could speedily handle the case and there are numerous twists such an unusual lawsuit could take.
At stake are requests from the Jan. 6 panel to NARA for records from dozens of people, both in and out of the administration, including Trump and his family members.
That includes requests such as “all documents and communications related to efforts, plans, or proposals to contest the 2020 Presidential election results” and “any documents and communications involving White House personnel and any Member of Congress” related to the Jan. 6 attack or the validity of the presidential election.
Trump told NARA that he formally asserted executive privilege on some documents the committee requested, as well as a protective assertion of executive privilege over any additional materials that the panel requests.
President Joe Biden, who as holder of the office of the president has the power to determine what should be covered by executive privilege, told NARA to turn over the records to the committee.
NARA told Trump it would do so by Nov. 12 “absent any intervening court order.” Trump is now seeking such a court order. His lawsuit argues that the request is too broad and asks for records under executive privilege and other protections from disclosure.
Trump’s lawsuit also seeks a delay, even if the records must be turned over. “At a bare minimum, the Court should enjoin the Archivist from producing any potentially privileged records until President Trump is able to conduct a full privilege review of all of the requested materials,” the lawsuit states.
Even if lower court judges rush the work on the lawsuit, a determined Trump could appeal the case about presidential and congressional power to the Supreme Court before it is finally resolved.
And the timing of that high court appeal would depend on when Trump’s challenge gets to the justices and how they decide to deal with it. For example, the quickest path to the Jan. 6 panel getting information could be a lower court order that does not stop the disclosure of the records and the Supreme Court declining to step in.
But if the justices want to hear the case before any records are released to the committee, the timing will matter. The justices can control when that happens, either as quickly as putting it on their schedule, or as slowly as putting it on the docket for the next term that starts the following October.