The effort by loyalists of former President Donald Trump to subvert the rule of law didn’t end with his presidential administration. By defying subpoenas issued by the House selectc ommittee investigating the Jan. 6 assault on the Capitol, withholding documents, invoking the Fifth Amendment and performing other acts of noncooperation, they are acting as though Congress and the courts can simply be ignored.
Trump’s legal tactics as a private citizen before he took office were a nuisance, but unsuccessful. The same will be true here.
But the committee is playing hardball with these recalcitrant witnesses. On Tuesday, the House turned up the heat on Mark Meadows, who served as chief of staff to Trump. It found him in contempt for not answering questions to do with the investigation, referring him to the Justice Department for possible criminal charges. And Meadows is not the only one facing punishment: Former Trump adviser Steve Bannon has already been indicted on (and pleaded not guilty to) two counts of criminal contempt of Congress.
Bannon, Meadows and other Trump partisans are using the classic Trump playbook to try to bury the truth about the insurrection. Their apparent goal is simple: run out the clock for a year in the hope that Republicans will win the House majority in 2022 and shut down the Jan. 6 investigation. But this insidious challenge to the legitimacy of the change of administration won’t work. Trump’s legal tactics as a private citizen before he took office were a nuisance, but unsuccessful. The same will be true here.
Though private citizens, former Trump officials assert dubious claims of executive privilege as if the 2020 election never occurred. Their scheme also includes delaying compliance with subpoenas, feigning cooperation and then reneging, suing in court, appealing losses and generally trying to wear down congressional investigators.
Trump employed similar tactics as a private citizen when sued for allegedly defrauding enrollees in Trump University and for mismanaging the Trump Foundation. Then when president, Trump sued to block his accountants from disclosing his tax records in response to a Manhattan grand jury subpoena. Trump was able to stall the inevitable for a while but eventually settled these civil suits (even if he didn’t admit wrongdoing) and lost in the U.S. Supreme Court, which rejected his claim to be immune from being investigated while president.
In the case of the Jan. 6 investigation, Trump’s own lawsuit seeking to block the National Archives from turning over White House documents to the committee promptly cratered. Not only was Trump’s claim of executive privilege rejected by the U.S. Court of Appeals for the District of Columbia Circuit on Thursday, but the court system acted at warp speed, by litigation standards, to do so.
In its thorough opinion, the D.C. Circuit rejected Trump’s claim that delaying disclosure of the records to allow further litigation wouldn’t do harm, instead finding that “the legislature is proceeding with urgency to prevent violent attacks on the federal government and disruptions to the peaceful transfer of power.” In doing so, the court relied on the 1974 Supreme Court precedent requiring President Richard M. Nixon to produce secret White House tape recordings despite Nixon’s claim of executive privilege.
Even if court appeals do result in the process being dragged out past November 2022 and a change of House party control, this run-out-the-clock ploy still won’t affect the working of the Justice Department and its prosecution of Bannon, and the expected one of Meadows, for criminal contempt of Congress. A Republican-controlled House of Representatives could ultimately dismantle the Jan. 6 investigation, but that doesn’t prevent the criminal prosecution from proceeding — and a jury from deciding whether these defendants are guilty.
The tactic of invoking the Fifth Amendment right against self-incrimination, as Trump loyalist Roger Stone and lawyers John Eastman and Jeffrey Clark have said they plan to do, can also be overcome. A general refusal to appear is unlawful and could also bring charges of contempt, as the Fifth Amendment privilege to avoid testifying can only be claimed on a question-by-question basis. Furthermore, if that evidence is crucial, Congress could ask a court to grant immunity to those witnesses, allowing them to testify without fear of self-incrimination based upon their disclosures and thereby removing the justification for invoking the Fifth Amendment.
At the same time, the House select committee has a long-neglected but powerful constitutional tool it can use to compel witnesses to honor its subpoenas. Congress doesn’t need the Justice Department or the courts to hold the witness in the custody of the Capitol Police to obtain sworn testimony; it can do so itself.
More than 90 years ago, the U.S. Supreme Court in McGrain v. Daugherty ruled that Congress can arrest a subpoenaed witness, hold the witness in custody and bring them to the Capitol to testify. In that case, the Senate directed its sergeant-at-arms to arrest Mally Daugherty, brother of a former U.S. attorney general.
After Daugherty was arrested in Cincinnati for defying the Senate’s subpoena, the Supreme Court in 1927 unanimously held that both the House and the Senate had the inherent power to arrest (the legal parlance was “attach”) a recalcitrant witness to compel attendance as a witness.
The court declared: “We conclude that the investigation was ordered for a legitimate purpose; that the witness wrongfully refused to appear and testify before the committee and was lawfully attached; that the Senate is entitled to have him give testimony pertinent to the inquiry.”
Despite the McGrain opinion, Congress has apparently not used its inherent power to arrest a witness since 1934 (an action also upheld by the Supreme Court in Jurney v. MacCracken). But the unprecedented assault on our democracy, embodied in the events of Jan. 6, justifies the House using the full extent of its powers.
Full airing of the facts of the Jan. 6 insurrection is essential so Congress can enact safeguards to prevent any future plot to thwart the lawful transition of power. Those defying the subpoenas must cooperate, or their reputations, careers — and even potentially liberty — will be collateral damage if they continue to protect Trump, who would never protect them.