The House Jan. 6 committee deposed more than 1,000 witnesses and gathered over 1 million documents, but had few enforcement options against those who challenged subpoenas or simply refused to appear.
(Bloomberg) — The House Jan. 6 committee deposed more than 1,000 witnesses and gathered over 1 million documents, but had few enforcement options against those who challenged subpoenas or simply refused to appear.
House Republicans have vowed an onslaught of investigations across the Biden administration and even into the work of the Jan. 6 committee itself when they take control of the chamber in January. The probe into the US Capitol attack and efforts to undermine the 2020 presidential election showed the reach and limits of Congress’ ability to pry loose information.
“If the only power you have left is a subpoena that will not be complied with, it spells trouble for the power of oversight investigations,” said Chris Armstrong, a former investigations and oversight counsel to congressional Republicans, now a partner at Holland & Knight.
Subpoenas for the phone records of former Trump administration officials and the ex-president’s allies gathered dust as more than a dozen court fights lagged. A number of challengers succeeded in running out the clock with no penalty.
In the weeks leading up to the committee’s final public meeting on Dec. 19, it withdrew subpoenas that had been tied up in court for months. Plaintiffs ranging from GOP operative Roger Stone and ex-White House adviser Stephen Miller to conservative attorneys Cleta Mitchell and Kurt Olsen dropped their lawsuits.
The committee’s dramatic vote this fall to subpoena former President Donald Trump was widely considered a symbolic gesture. He never appeared. The committee’s subpoenas to Republicans in Congress deepened partisan bad blood, but neither side decided to test the strength of their position in court. The committee voted this week to refer four House Republicans to the Ethics Committee, including party leader Representative Kevin McCarthy, but those likely will soon be moot.
Criminal prosecution didn’t convince Steve Bannon or Peter Navarro to cooperate; Bannon is facing jail time following his contempt conviction and Navarro’s trial kicks off next year. The Justice Department chose not to press charges regarding two other criminal referrals made by the committee during its investigation, for former White House chief of staff Mark Meadows and former White House aide Dan Scavino. And there was nothing the committee could do about it.
Unusual Cooperation
The committee did score several big legal victories — judicial opinions a Republican-led House could lean on. Congressional lawyers defeated Trump’s challenge to the release of his archived administration records. A judge tossed out Meadows’ civil lawsuit contesting his subpoena, considered a bellwether for other challenges to the committee’s work.
Those court fights, and the probe as a whole, received a boost from an amenable executive branch. President Joe Biden’s refusal to back his predecessor’s executive privilege claim over archived records spurred Trump’s unsuccessful lawsuit. The Justice Department backed the committee in Meadows’ case and cleared former top officials to testify during this summer’s public hearings.
The Jan. 6 committee was an “aberration” in the support it got from the White House, said Jonathan Shaub, a former attorney-adviser in the Justice Department’s Office of Legal Counsel. The Biden administration still has legal grounds to push back against “robust” oversight by Republican-led committees, he said.
Meadows’ case highlighted some of the remaining gray areas, such as the Justice Department’s mixed record acting on criminal referrals, said Shaub, a professor at the University of Kentucky J. David Rosenberg College of Law.
In Meadows’ civil case, the Justice Department argued that former advisers to an ex-president weren’t entitled to absolute immunity against being forced to comply with congressional subpoenas. But the department also took the position that someone else in Meadows’ situation could be covered by a “qualified” immunity, depending on what lawmakers offered as their “legislative purpose.”
Ebbing Power
A judge dismissed Meadows’ case on Oct. 31, finding the committee couldn’t be sued under the Constitution’s Speech or Debate Clause. Although Meadows lost, his case kept the subpoena in limbo. Arizona Republican Party Chair Kelli Ward unsuccessfully pressed a subpoena challenge up to the US Supreme Court, but her case similarly wasn’t resolved until the committee was wrapping up its work.
Aside from criminal referrals, the Jan. 6 panel didn’t initiate legal action to enforce its demands for testimony and documents. Time has been the enemy of congressional committees that took subpoena fights to court; some Trump-era battles only just wrapped up this year.
Armstrong, the former oversight counsel, said GOP lawmakers are “well aware” they’ll get limited cooperation from a Democratic administration. He said he expected to see more oversight activity in the new Congress directed at the private sector, where there can be less appetite for a fight.
“The most powerful subpoena is the one that’s not issued,” Armstrong said.
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