Jan. 6 committee shows Congress can’t enforce subpoenas alone
Delays and lack of consequences for unwilling witnesses may haunt congressional investigations for a long time, experts say
This is the third in a series of reports about the House select committee to investigate the Jan. 6, 2021, attack on the Capitol and how congressional investigations have changed in the aftermath of the panel's work.
The House Jan. 6 select committee spent nearly a year trying to get former Trump chief of staff Mark Meadows to testify, winning a protracted court fight to defend its subpoenas and voting to refer Meadows for prosecution of contempt of Congress.
But in the end, Meadows never testified about emails and texts he exchanged with members of Congress and others in the days around the Jan. 6, 2021, attack on the Capitol. And the Justice Department declined to charge the White House official.
Meadows was one of more than a half-dozen witnesses targeted for subpoenas by the committee who leveraged the courts to brush off one of the most prominent congressional investigations in decades.
While members of the committee and Justice Department lawyers have pointed to court victories and a contempt of Congress conviction as a vindication of congressional investigative power, the panel’s legal record over its subpoenas highlighted how much the legislative branch will rely on the courts and federal agencies in future probes.
Former House General Counsel Doug Letter, who led litigation efforts in those cases and dozens of others in the four years he served in that role, said he felt Jan. 6 committee lawsuits fortified the House’s subpoena power but “there’s a huge practical issue that hangs over all of this.”
“If you can bring a suit you can drag it out, and that’s a problem, especially if the courts don’t rule quickly,” Letter said. “People clearly demonstrated this major conundrum, that Congress can issue subpoenas but it needs court enforcement.”
Letter said another prominent congressional tool, affirmatively enforcing subpoenas through civil contempt, runs into the same problem with slow-moving courts. The last is inherent contempt, or Congress arresting defiant witnesses to try to force their testimony, and “there hasn’t been the political will for that,” Letter said.
Even when the panel sent former President Donald Trump himself a subpoena in October, committee members couched the demand for documents and testimony as an “invitation” for the former president to tell his side of the story.
Trump sued to challenge the subpoena, and the litigation lingered until the committee sent Trump a letter in December dropping the request.
“As you may know, the Select Committee has concluded its hearings, released its final report and will very soon reach its end,” the committee letter said. “In light of the imminent end of our investigation, the Select Committee can no longer pursue the specific information covered by the subpoena.”
Conservative activist Ali Alexander fought a Jan. 6 panel subpoena in federal court for nearly a year and got what he wanted: keeping his phone records from the panel investigating the attack on the Capitol. While Alexander testified before the panel and never actually won his challenge, the court case over the records lingered until the panel eventually withdrew its subpoena to Verizon when it folded in December.
The committee also eventually had to back down from litigation with conservative activist Stephen Miller and more than a half-dozen other witnesses in December, after more than a year of litigation, without getting the documents they sought.
And in lower-profile litigation where the committee won in court, it still faced roadblocks and delays that ran into the closing days of its investigation. A federal judge sided with the committee to enforce a subpoena for Salesforce.com data for the Republican National Committee, but the panel withdrew the lawsuit after the appeals court took too long.
The Supreme Court gave the panel access to Arizona GOP Chair Kelli Ward’s cellphone data, but that was only a month before the committee disbanded.
Conservative activist Taylor Budowich appealed a ruling that dismissed his fight to keep his financial records from being used by the panel, in a case that was only dismissed by the U.S. Court of Appeals for the District of Columbia Circuit this month.
Many targets of the probe were able to avoid subpoenas for more than a year, and experts said the sharply divided Congress likely won’t reclaim much of its power soon.
Even the two cases the Justice Department brought for contempt of Congress, the first in decades, represent a fraction of the witnesses who refused to cooperate with the committee.
The House originally referred five witnesses for contempt prosecutions, but the Justice Department charged only two: former White House adviser Stephen Bannon and former trade adviser Peter Navarro. But both cases haven’t concluded months after the panel ended.
Bannon was convicted on two counts of contempt following a trial last year, the first such conviction in decades. He has appealed his conviction in a case currently pending before the U.S. Court of Appeals for the D.C. Circuit. If his conviction stands, he faces a minimum of 30 days in prison on each count, up to a maximum of one year.
The case against Navarro has dragged as well — the trial may not take place until later this year after months of delays due to scheduling and legal issues.
But the DOJ did not prosecute three others: former White House Chief of Staff Mark Meadows, former DOJ official Jeffrey Clark and former Trump Deputy Chief of Staff Dan Scavino.
At the time, committee Chairman Bennie Thompson and Vice Chair Liz Cheney called the decision “puzzling,” but there were differences between the two groups.
Clark, Meadows and Scavino all cooperated with the committee in some fashion; Clark sat for a deposition, and both Meadows and Scavino provided documents. None of them face legal issues related to the Jan. 6 probe now.
Letter and others said there were significant favorable rulings the committee obtained in appeals courts and at the Supreme Court, including a push to get former President Donald Trump’s records from the National Archives and Records Administration and from attorney John Eastman.
In the Eastman case, U.S. District Judge David O. Carter found that Trump and Eastman likely engaged in a conspiracy to defraud the United States.
“I hope that people recognize that investigatory power now is stronger than it was before I litigated,” Letter said. “I think we established some extremely important case law that is, I would hope, going to be taken into account by both future Congresses and future administrations.”
The Eastman litigation was particularly notable, for not only enforcing a congressional subpoena but also prying apart the normal attorney-client privilege over documents, according to Debra Perlin, the policy director for Citizens for Responsibility and Ethics in Washington.
Multiple committee members said they issued subpoenas where they felt them necessary and where witnesses did not otherwise cooperate. They also pointed out that the vast majority of witnesses complied with subpoenas and that factored into the more than 1,000 witnesses the panel spoke to during its investigation.
Rep. Jamie Raskin, D-Md., a former member of the Jan. 6 committee and now ranking member on the House Oversight Committee, said the court rulings the committee obtained fell in line with longtime Supreme Court precedent about Congress’ subpoena power.
“So we feel great. We vindicated that principle, that a subpoena coming from Congress has the same legal force as a subpoena coming from a court,” Raskin said.
Raskin noted a little bit of irony for Republicans taking over the House this Congress after many downplayed the panel’s legitimacy and several ignored subpoenas entirely.
That includes Speaker Kevin McCarthy and House Judiciary Chairman Jim Jordan, who now leads a House select subcommittee on the “weaponization” of the federal government that seems destined to collide with the Biden administration in court.
“A lot of them did whatever they could to trash the power of Congress to issue subpoenas, and it obviously puts them in a difficult position when they want to start issuing subpoenas which they think have no binding legal effect on people,” Raskin said. “Most people don’t seem to get into politics in order to achieve intellectual consistency. And so I think we could expect some radical inconsistency there.”
The difficulty of enforcing congressional subpoenas has surfaced already this Congress as Republicans chart out their investigative priorities. Rep. Mike Johnson, R-La., a member of the select panel and an attorney, said the panel has already started planning for potential court challenges to subpoenas.
“I think we’re very sober-minded about the subpoena process and we understand the challenges,” Johnson said. “We’re going to be prepared to challenge any of that opposition in court, and we’re going to do it in short order because we have a tight timetable we’re working under.”
The subcommittee has already sent subpoenas to five social media companies, including Meta, Google, Apple and Amazon seeking their testimony, as well as subpoenas to the Biden administration.
Perlin and others said the delays, and lack of consequences for unwilling witnesses, may haunt congressional investigations for a long time.
“The fact that so many high-ranking officials treated subpoenas with such a cavalier attitude will reverberate for years to come,” Perlin said.
Alyssa DaCunha, a partner at Wilmer Hale and co-chair of the firm’s congressional investigations practice, said congressional committees issue subpoenas at their own risk. Congress has few ways to enforce a subpoena, and all of them take resources, DaCunha said.
“If you are going to bring a lot of subpoenas you have to have a strategy to back that up, or people realize it is an empty letter,” DaCunha said.
Aside from the enforcement issues, DaCunha said congressional subpoenas have historically had a “reputational downside” for businesses or individuals — one that may dry up as more subpoenas are used.
“There is a risk that the more congressional subpoenas get issued that the perceived downside of receiving a congressional subpoena is reduced,” she said.
The lack of consequences for those who refused to cooperate with the Jan. 6 panel is key for seeing whether Congress’ power has any teeth, according to Casey Burgat, an assistant professor and legislative affairs program director at George Washington University.
“We’re at a real low point in terms of the effectiveness of Congress, forcing compliance with witnesses who are otherwise unwilling,” Burgat said.
“So all of this leads to an incentive structure for potential witnesses to just wait it out,” Burgat said. “And then you can face a very, very different political dynamic, including the House full-on shutting down the investigation itself.”