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Jan. 6 committee work shifts into new gear getting closer to Trump

Subpoena issued for Kimberly Guilfoyle, White House adviser and girlfriend of Don Jr.

Former President Donald Trump speaks to supporters from the Ellipse at the White House on Jan. 6, 2021.
Former President Donald Trump speaks to supporters from the Ellipse at the White House on Jan. 6, 2021. (Bill Clark/CQ Roll Call file photo)

The House select committee investigating the Jan. 6 insurrection has stated it has a “good-faith belief” that former President Donald Trump may have committed criminal acts in his effort to overturn the 2020 election results, a disclosure that elicited a sharp response from Trump on Thursday — and which came as the panel’s latest subpoena got closer to his inner circle and family.

“The actual conspiracy to defraud the United States was the Democrats rigging the Election, and the Fake News Media and the Unselect Committee covering it up,” Trump said in a statement in which he continued to falsely claim the election was stolen from him.

Specifically, the committee notes it has evidence that “provides, at minimum, a good-faith basis for concluding” Trump violated the law relating to obstruction of an official proceeding — in this case Congress’ counting and certification of Electoral College votes. The panel also says it has “a good-faith basis for concluding that the President and members of his Campaign engaged in a criminal conspiracy to defraud the United States” in violation of federal law.

Chairman Bennie Thompson told reporters it is up to another agency, such as the Justice Department, if it wants to act on the committee’s findings.

“We have what the facts have presented to us, but at the end of the day, we’re not a criminal [prosecutorial entity] so we can only say what we found and what we believe and obviously if another agency wants to take it up, based on that evidence, it’s up to them,” the Mississippi Democrat said.

The committee’s findings were filed in a brief on Wednesday in the lawsuit of Trump ally John Eastman, a lawyer who advised Trump that Vice President Mike Pence could refuse to count the electoral votes as presiding officer of the joint session of Congress. Eastman invoked the Fifth Amendment against self-incrimination 146 times in his deposition with the committee and wants to keep a range of documents from the panel on attorney-client privilege and work-product protection claims.

The committee notes that communications wherein a “client consults an attorney for advice that will serve him in the commission of a fraud or crime,” which is called the crime fraud exception, are not shielded from disclosure. Evidence and information collected by the panel “establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts” and that Eastman’s legal aid was used to further those endeavors.

“I think as we laid out very clearly in our brief, based upon what we’ve learned to date, and this is certainly not everything that we’ve learned, but based upon what we’ve learned to date, we do certainly think that the attorney client privilege, which, frankly, has been waived for other reasons, also would be waived here because of the crime fraud exception,” Vice Chair Liz Cheney, R-Wyo., said.

Thompson said the panel hasn’t yet decided on whether it will ask Trump to speak with it. 

“We have not made a decision on the president directly, at this point, but that doesn’t mean it’s off the table,” Thompson said.

Meanwhile, the panel on Thursday sent a subpoena to Kimberly Guilfoyle, who served as an adviser to the former president and is the girlfriend of Trump’s son Don Jr.

The letter to Guilfoyle notes that the committee has evidence she met with the former president, along with members of his family and others in the Oval Office, on the morning of Jan. 6. That instance was the last time the elder Trump spoke with Vice President Mike Pence in advance of the joint session of Congress to count electoral votes.

An exhibit included in the committee’s brief from the Eastman litigation shows the former president’s schedule from that day. It lists a meeting at 11:10 a.m. that includes Guilfoyle, Eric Trump, Don Jr., Eric Herschmann and a Gen. Kellogg, an apparent reference to Keith Kellogg, a White House national security adviser.

Guilfoyle, who spoke at the Ellipse rally before the insurrection, claimed to have played a role in raising money for that rally, the committee said. “Because Ms. Guilfoyle backed out of her original commitment to provide a voluntary interview, we are issuing today’s subpoena that will compel her to testify. We expect her to comply with the law and cooperate,” Thompson said in a statement.

Public hearings are expected this spring. When asked about the possibility of having Capitol rioters who pleaded guilty testify in public, Thompson said that could be an option. 

“We want to paint as clear a picture as possible as to what occurred. If we can get cooperation from rioters, I think it would be important to find out how you got involved in this,” Thompson said.

Hundreds of witnesses have cooperated with the panel’s investigation.

The substantial legal filing comes in the same week that the first criminal trial of a Jan. 6 rioter began. Prosecutors outlined their opening arguments Wednesday in the trial of Guy Wesley Reffitt, a man who prosecutors say belonged to a militia group called the Texas Three Percenters and led a mob up a staircase of the Capitol while armed with a pistol. 

Tensions on the floor regarding the insurrection flared Thursday in a colloquy on the floor between House Minority Whip Steve Scalise, R-La., and Majority Leader Steny H. Hoyer, D-Md., about reopening the Capitol to visitors, which has been closed to them since the start of the COVID-19 pandemic. Republicans have criticized Democrats for not opening the Capitol complex fully.

Hoyer and Scalise discussed legislation to reopen the Capitol to the public, speaking in reference to a resolution agreed to by the Senate on Tuesday, in support of the Senate returning to pre-pandemic public visitor policies.

Scalise encouraged Hoyer to bring to the floor a related House resolution that would reopen the House wing of the Capitol, and Hoyer responded that “as soon as we can [reopen] responsibly, we ought to do it,” saying the House attending physician and sergeant-at-arms are considering health and security factors in reopening.

Hoyer added his reservations for reopening the Capitol in light of the Republican National Committee’s agreement to a resolution that referred to the Jan. 6 insurrection as “legitimate political discourse.”

“If we are telling people in this country that Jan. 6 was legitimate political discourse, we’re going to have great concerns about opening up this Capitol for the safety of our members, for the safety of the public who wants to visit, for the safety of our staff,” he said.

Scalise responded by saying the resolutions to reopen the Capitol “are not about January 6 … [but] allowing the American people to exercise their First Amendment right to come and meet with their members of Congress.”

That did not fly with Hoyer.

“I have not brought this up, but I am constrained to do so as we talk about opening up our Capitol,” Hoyer said. He noted that the fence around the Capitol for the State of the Union and increased security was due to the pro-Trump insurrection. “Tuesday night we were an armed camp … because of what happened on Jan. 6.”

Kathleen Bever contributed to this report.

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