Congress faces delays in speedy push for Jan. 6 accountability
Legal experts preach patience, but Democrats wary of 2022 election clock
One year out from the Jan. 6, 2021, attack on the Capitol, the members of Congress who have pushed for accountability for more than just the rioters still have to contend with a federal justice system that moves at a much slower pace than politics.
Key congressional subpoenas from the House select committee investigating the Jan. 6 attack are tied up in court challenges. Civil lawsuits from Democratic Reps. Bennie Thompson and Eric Swalwell against former President Donald Trump and others, related to the violence from that day, are only now about to have a first hearing next week.
And a sweeping Justice Department criminal investigation of the riot seen more than 725 people arrested in nearly all 50 states and the District of Columbia in the past year, but given no sign that Trump or his political allies are targets in connection to the violence.
Lawmakers might want to just be patient for this year because the justice system takes time, experts say. Many of the pieces are coming together for possible major developments in all of those areas in 2022, in part because of the speed with which the House Jan. 6 select committee is conducting its investigation.
“While accountability is not as fast as anyone any of us would like, it is moving at a smart pace given the constraints of the legal system,” said Norman Eisen, a senior fellow at the Brookings Institution and veteran of congressional investigations, including the first Trump impeachment. “And I think Trump and those around him are likely to face consequences.”
The lack of speed of the court system became a central theme during the Trump administration’s push to oppose congressional subpoenas, such as a challenge to the House subpoena of former White House counsel Don McGahn. That lawsuit spent years in the courts and was settled only after Trump had been voted out of office — and the political salience of the congressional probe had greatly dissipated.
This time, House Democrats are factoring in the slow court system in their strategy. The Jan. 6 select committee so far has convinced two lower courts to take only two months to turn aside Trump’s bid to block the panel’s subpoena for some White House records.
Yet Trump has taken that challenge to the Supreme Court, and the justices have yet to decide whether to hear the appeal, a reminder of the sting of long delays that Congress felt in previous investigations into the actions of Trump and his allies.
Democrats are concerned the court challenge may stretch beyond the 2022 midterm elections, when their party might lose control of the House, and with it the committee to investigate the Jan. 6 attack.
“With each passing day, the Select Committee is being forced to conduct its investigation, including interviewing witnesses, without the benefit of the key documents at issue in this case,” House lawyers told the Supreme Court last week in a filing that urged the justices not to hear Trump’s case.
Thompson, the Mississippi Democrat leading the Jan. 6 panel, said last month that the committee chose to pursue criminal contempt of Congress for witnesses who didn’t comply with subpoenas because it was faster than a civil contempt route.
A civil lawsuit would “probably end up in years of litigation” and “delay the work of the committee,” Thompson told the House Rules panel, ahead of a vote on contempt of Congress for former White House Chief of Staff Mark Meadows stemming from his refusal to comply with a committee subpoena.
A grand jury indicted former White House adviser Steve Bannon on two counts of contempt of Congress for not complying with a subpoena, just three weeks after the House voted to refer the matter to the Justice Department for possible prosecution. A trial is set for July.
But those who get subpoenas can still drag things out in court. Meadows filed a lawsuit to stop the subpoena in early December that could take months even if courts work fast. And someone filed a challenge Wednesday under an anonymous name of “Plaintiff” to challenge the committee’s subpoena of cell phone records from Verizon.
Potential legislation and charges
The House passed almost entirely along party lines a Democratic-led bill in December that would bolster the power of Congress to go to court to enforce subpoenas. The provisions include a requirement for courts to expedite the case “to the greatest possible extent” and to allow Congress to streamline an appeal right to the Supreme Court.
The Justice Department’s criminal investigation, one of the biggest in history, has produced arrests as recently as December. But U.S. District Judge Amit Mehta, at a sentencing hearing for one of the rioters, brought up how those who stormed the building have faced justice while “an elected official” who prompted them to go there has not.
“Those who created the conditions that led to” that defendant’s “conduct have in no meaningful measure been held accountable,” Mehta said at the November hearing.
California Democratic Rep. Adam B. Schiff, a member of the Jan. 6 panel, told MSNBC on Tuesday that he is “deeply concerned that it is the foot soldiers being investigated, prosecuted, and that others that may have been involved in criminal activity do not appear to be under investigation.”
Schiff then pointed to the call from Trump to Georgia Secretary of State Brad Raffensperger after Election Day 2020, in which the president pressed for actions to give him 11,780 votes and a win in the Peach State.
Attorney General Merrick B. Garland, in an address to Justice Department employees on Wednesday, did not specifically address such concerns that were raised by several Democratic members of Congress.
Garland said that the actions the DOJ has taken so far “will not be our last” and that the investigation is following “well-worn prosecutorial practices” in complex cases, in which initial charges are often less severe than later charged offenses.
“The Justice Department remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law, whether they were present that day or were otherwise criminally responsible for the assault on our democracy,” Garland said.
Barbara McQuade, a law professor at the University of Michigan and a former U.S. attorney for the Eastern District of Michigan, said it is understandable that it would take as long as 18 months to complete such a complex case.
“So people should understand that; don’t give up on them yet,” McQuade said. She said she would wait until the middle part of 2022 “before I would start wondering whether they’re actually doing anything.”
Eisen said the House Jan. 6 panel “has moved at a blistering pace by the standards of congressional investigation” and collected tens of thousands of documents and interviewed over 300 people “with great alacrity” as it moves to hearings and an interim report in the coming months.
Eisen said the Justice Department might be waiting for the Jan. 6 committee to complete its investigation and issue an interim report early in 2022. “I think it will make a strong criminal referral both to the federal government and to state prosecutors,” he said.