The House select committee investigating the Jan. 6, 2021, attack on the Capitol will have a list of subpoenas that it may never get to fully enforce before it moves forward with a series of public hearings in the next few weeks.
The committee intends to showcase what it uncovered in months of work on the events surrounding the attack, such as the more than 1,000 interviews it has conducted and thousands of documents it received from even recalcitrant witnesses.
Yet the plodding pace at which committees can enforce congressional oversight means some major players and key records remain out of reach, which appears to include testimony from House Minority Leader Kevin McCarthy and four other Republicans who received subpoenas nearly three weeks ago.
Experts say any effort to use the court system to force those members to testify may drag on after the committee’s planned public airings of findings. The committee is “at the mercy of the congressional calendar” with midterm elections looming, according to Molly Reynolds, a senior fellow at the Brookings Institution who studies Congress and House oversight efforts.
“At some point they need to start telling that story, or else they run the risk of running out of time,” Reynolds said. “There’s a ticking clock.”
The committee itself told a federal judge on Sunday that it would give up its request for a “highly expedited schedule” to get records from Salesforce.com concerning the Republican National Committee and confidential emails and other communications sent around the time of the 2020 election and the Jan. 6 attack.
An RNC lawsuit slowed down a committee request to the vendor for internal documents, which the panel sought to discern the national party's involvement in the rally before the Capitol attack. A federal district court judge had sided with the committee.
But an appeals court panel set June 14 oral arguments in the RNC’s effort to block the release of the records, which means the information at the core of the case “cannot be obtained, analyzed, and utilized by the Select Committee in the public hearings scheduled during the next several weeks,” the House lawyers wrote in a filing.
The information could only be useful for additional hearings later this year or an ensuing final report from the committee recommending legislative action, the House lawyers said. They proposed a new schedule that would put oral arguments sometime after Aug. 19.
In a separate lawsuit brought by former White House Chief of Staff Mark Meadows, the committee asked a judge in April to quickly rule that he must provide testimony and records, including some Verizon records.
The judge has not yet ruled on that, and Meadows would likely launch his own appeal, which may wrap up after this month’s hearings.
Linda Dale Hoffa, a longtime federal prosecutor and partner at Dilworth Paxson LLP, said the pace of those court fights may keep the committee from deposing many figures in the investigation.
“These things can take not just weeks but months, and obviously the appellate process can take even longer,” Hoffa said. “If the lawsuits are not resolved by [June] the committee is stuck, and they will be able to go forward but only on the basis of the information that they had been able to gather from other sources.”
Hoffa said that court delays could be critical in the coming weeks. The House could continue to win in court, but delays can rack up as the days tick by, Hoffa said.
“I don't think, ultimately, [the challenges] will prevail in the courts. But that doesn't matter, because if you run the clock then you succeed, right?” Hoffa said.
The committee has spent much of the last year fighting out more than a dozen court cases and seeking contempt of Congress charges to try to add testimony or documents to a broad investigation of the attack.
The House has voted to recommend contempt of Congress charges for four close advisers of former President Donald Trump for not complying with subpoenas. The Justice Department is still considering whether to file charges on three of them.
The one now in court on the charge, Steve Bannon, doesn’t go to trial until July. Even if he and the others are convicted, that won’t mean they have to testify before the committee or turn over the information they are withholding.
That group also includes Meadows, whose lawsuit that includes Verizon records is among more than a dozen in federal and state courts over access to phone and other records that don’t appear close to resolution before the big hearings this month.
That includes lawsuits from Stephen Miller, a senior adviser for Trump, and Sidney Powell, a lawyer involved in lawsuits seeking to change the results of the 2020 election.
Miller sat for an interview with the committee in April, but his lawsuit to block access to his phone records is still active. Others, such as right-wing activist Ali Alexander, have successfully held off on companies like Verizon handing over records for the past six months.
The panel did prevail in one of its high-profile efforts in January at the Supreme Court, in a case about a subpoena for White House records that Trump tried to stop. And the committee has gotten some of the 30,000 pages of emails they want from John Eastman, the lawyer entwined in Trump’s theory of how members of Congress could help overturn the results of the election.
An attorney for McCarthy issued an 11-page letter to the committee challenging its legitimacy and attempting to set conditions for him to cooperate — with a line that sounds like it could mean a lawsuit.
“I expressly reserve Leader McCarthy’s right to assert any other applicable privilege or objection to the Select Committee’s subpoena,” attorney Elliot S. Berke wrote.
In a May 27 statement, committee spokesman Tim Mulvey said McCarthy and others were “hiding behind debunked arguments and baseless requests for special treatment.”
“The refusal of these Members to cooperate is a continued assault on the rule of law and sets a dangerous new precedent that could hamper the House’s ability to conduct oversight in the future,” the statement said.
McCarthy and Jordan penned a Wall Street Journal op-ed last week arguing that Democrats were trying to distract from economic woes caused under the Biden administration.
Other Republican subpoena recipients have been more direct. In a statement issued last month, Perry called the committee a “political witch hunt” that was fabricating information.
Reynolds, from Brookings, pointed out that just because the committee may not be able to compel testimony from the members themselves, they may still get the information they need. During Trump’s first impeachment process, the House heard evidence from junior staffers after major players refused to testify.
“They were not necessarily the highest-profile individuals who were involved in that episode, but they were people who often testified because they were career folks, and their reputations were established differently,” Reynolds said.
The committee already has reams of that information, including from more than 1,000 interviews and secondary sources like other members of Congress. The committee’s letter to McCarthy cited a statement from fellow Rep. Jaime Herrera Beutler, who said McCarthy had a conversation with Trump that day.
That volume of evidence has been drowned out at times by the focus on witnesses who defied the committee, according to New York University Law School professor Ryan Goodman. Goodman pointed out the committee has done a “huge volume of work” heading into next month’s public hearings.
“I do think that the media's attention can often be distracted by recalcitrant witnesses like Steve Bannon. And that can be a spectacle, and it is a spectacle for good reason,” Goodman said. “But at the same time, the committee has been hard at work, so that he represents a very small minority of the people that are speaking to the committee.”