How Stalling Tactics Could Still Constrain the January 6 Committee
By P. Michel McKinley - December 20, 2021
There remains, however, a serious risk that it may fail over the longer term. Critical witnesses still defy subpoenas; litigation in the courts delays release of key presidential communications and documentation; and the calendar for public hearings in the House has been pushed into the new (election) year. Moreover, evidence that one week appears to be defining for the investigation, seems to dilute in importance over time; and the Department of Justice appears to be pursuing the low-hanging fruit of charging the Capitol rioters instead of those who incited or instigated them to act.
The House representatives who make up the committee are also in danger of over-selling advances in legal process that seem unlikely to advance their investigation. Their motion on Dec. 13, to hold Meadows in contempt is a case in point. It was significant, but it was also only the first step of a process that could take months to reach prosecution – and it is doubtful that it will force Meadows to testify in any meaningful fashion. As if to underscore the probability, Roger Stone on Dec. 17 invoked the fifth amendment, as two lawyers close to Trump (Clark and Eastman) had done before him.
This pattern played out in earlier investigations into the Trump administration. Then, as now, witness testimony and bombshell revelations briefly captured the news cycle – like the highly selective release of Meadows’ emails – but Congress was unable to deliver meaningful accountability. Instead, members of Congress fell into legalistic formalism and struggled to convey the gravity of the situation to the public. That approach affected not only of the Ukraine investigation, but also the 2019 Mueller investigation, and the 2020 and 2021 impeachment trials of President Donald Trump. With the Jan. 6 investigation, the committee and Biden administration risk making the same mistakes once more.
But there are steps the committee, the Department of Justice, and the White House could consider to inject a greater sense of urgency so that critical information is not buried under the delay tactics of former administration officials and Trump himself. Without them, the Jan. 6 committee, like every other effort to hold former President Trump accountable, could fail.
Delays – and More Delays
The
legal delays are building. Only two days after the Nov. 9 decision by a
federal judge to allow release of presidential documents requested by
the committee, a federal appeals court granted Trump’s request for a
stay until Nov. 30. On Dec. 9, the D.C. Circuit decided against the
former president but granted another two-week stay for Trump to petition
the Supreme Court, which effectively ties the hands of the National
Archives as it seeks to respond to the committee’s request for
information. The legal basis for Trump’s challenge may be questionable,
but winning on the merits is not the objective. The purpose would appear
to be to delay the investigation until the November 2022 midterm
elections, which Republicans are widely expected to win based on newly
gerrymandered congressional districts.
The committee is also struggling to compel the full testimony of defiant potential witnesses, with or without subpoenas. Meadows is only the latest example – and he is going a step further by countersuing. While the House voted to refer Meadows for criminal contempt of Congress charges, it will be up to DOJ to decide whether to prosecute.
When the committee is able to obtain supposedly critical evidence – such as the Eastman legal memo, the PowerPoint on overturning the election, the Meadows email on the National Guard – each new document is hyped and then seems to quickly fade in importance. The same media overkill greets the announcements of persons promising to cooperate with the inquiry, most recently former Vice President Mike Pence’s chief of staff Marc Short, only to have witnesses change course within days, as Meadows did. Meanwhile the most crucial evidence appears to be hidden behind the now familiar legal delay tactics used by Trump and his allies.
A cautious DOJ is not helping. It celebrates the conviction of “the foot soldiers” of the assault while the ‘intellectual authors’ are largely unscathed. The decision to proceed with a case against Stephen Bannon, resulting in a Nov. 12 indictment, seemed to be a positive development, but a Trump-appointed judge later announced that the trial will not take place until July 2022, hardly soon enough to help the investigation against the ticking clock of 2022 midterms. The concern about DOJ’s approach is growing. Edward Luce in the Dec. 16 Financial Times warned that Attorney General Merrick Garland was “missing the big picture” of a democracy under siege. He was joined by Harvard legal scholar Laurence Tribe who, also on Dec. 16, was equally harsh, noting that the Department of Justice “really ha[s] to up [its] game” and “to look into the crimes that were committed.”
Many of the legal delays are built into the process, as a recent article by Quinta Jurecic in The Atlantic noted. The White House, which remains central to next steps, must act as aggressively as possible on the release of documentation, but also respect existing constraints. The latter include court orders and federal regulations, which authorize an “incumbent” president to review a claim of executive privilege after a former president asserts it. The range of information under scrutiny in this regard is extensive as the committee has made clear: government “communications and documentation” touching on the preparation for and events and aftermath of Jan. 6 to include intelligence, social media, emails, handwritten notes, legal opinions, conversation records, and visitor and call logs.
The irony is that the same legal system that has allowed Trump and his allies to delay and thwart congressional subpoenas has made the Biden administration appear hesitating as it waits for legal challenges to the committee’s work to be decided. Unlike many prior administrations, the Biden administration declined to invoke executive privilege to block release of documents requested by the Jan. 6 select committee. The administration has also given clear signals that it supports strong transparency and accountability for the “extraordinary events” around the “the most serious attack on the operations of the Federal Government since the Civil War.” Nonetheless, it has followed existing legal frameworks in reviewing documentation to release only on a “case-by-case” basis, influenced it seems by more immediate concerns over which communications are covered by executive privilege and setting precedents that could impact future administrations, including the Biden presidency.
A good indication of this “case-by-case” process was President Biden’s carefully worded green light to the National Archives to release only the referenced documents requested by the select committee. Although the White House was following the Presidential Records Act, that law does not appear to adequately account for a former administration using legal processes to hide evidence of misconduct.
No Results: The Failure of Prior Investigations into Trump
The committee is also struggling to compel the full testimony of defiant potential witnesses, with or without subpoenas. Meadows is only the latest example – and he is going a step further by countersuing. While the House voted to refer Meadows for criminal contempt of Congress charges, it will be up to DOJ to decide whether to prosecute.
When the committee is able to obtain supposedly critical evidence – such as the Eastman legal memo, the PowerPoint on overturning the election, the Meadows email on the National Guard – each new document is hyped and then seems to quickly fade in importance. The same media overkill greets the announcements of persons promising to cooperate with the inquiry, most recently former Vice President Mike Pence’s chief of staff Marc Short, only to have witnesses change course within days, as Meadows did. Meanwhile the most crucial evidence appears to be hidden behind the now familiar legal delay tactics used by Trump and his allies.
A cautious DOJ is not helping. It celebrates the conviction of “the foot soldiers” of the assault while the ‘intellectual authors’ are largely unscathed. The decision to proceed with a case against Stephen Bannon, resulting in a Nov. 12 indictment, seemed to be a positive development, but a Trump-appointed judge later announced that the trial will not take place until July 2022, hardly soon enough to help the investigation against the ticking clock of 2022 midterms. The concern about DOJ’s approach is growing. Edward Luce in the Dec. 16 Financial Times warned that Attorney General Merrick Garland was “missing the big picture” of a democracy under siege. He was joined by Harvard legal scholar Laurence Tribe who, also on Dec. 16, was equally harsh, noting that the Department of Justice “really ha[s] to up [its] game” and “to look into the crimes that were committed.”
Many of the legal delays are built into the process, as a recent article by Quinta Jurecic in The Atlantic noted. The White House, which remains central to next steps, must act as aggressively as possible on the release of documentation, but also respect existing constraints. The latter include court orders and federal regulations, which authorize an “incumbent” president to review a claim of executive privilege after a former president asserts it. The range of information under scrutiny in this regard is extensive as the committee has made clear: government “communications and documentation” touching on the preparation for and events and aftermath of Jan. 6 to include intelligence, social media, emails, handwritten notes, legal opinions, conversation records, and visitor and call logs.
The irony is that the same legal system that has allowed Trump and his allies to delay and thwart congressional subpoenas has made the Biden administration appear hesitating as it waits for legal challenges to the committee’s work to be decided. Unlike many prior administrations, the Biden administration declined to invoke executive privilege to block release of documents requested by the Jan. 6 select committee. The administration has also given clear signals that it supports strong transparency and accountability for the “extraordinary events” around the “the most serious attack on the operations of the Federal Government since the Civil War.” Nonetheless, it has followed existing legal frameworks in reviewing documentation to release only on a “case-by-case” basis, influenced it seems by more immediate concerns over which communications are covered by executive privilege and setting precedents that could impact future administrations, including the Biden presidency.
A good indication of this “case-by-case” process was President Biden’s carefully worded green light to the National Archives to release only the referenced documents requested by the select committee. Although the White House was following the Presidential Records Act, that law does not appear to adequately account for a former administration using legal processes to hide evidence of misconduct.
No Results: The Failure of Prior Investigations into Trump
Congress has been here before. The negative consequences of not providing the whole evidentiary record to the Jan. 6 committee are almost preordained. Incomplete dockets directly led to the foundering of previous investigations into the Trump administration:
The Mueller investigation: Its March 2019 report was the triumph of caution over transparency, as one of Mueller’s own deputies made clear. Mueller could have recommended prosecution based on the extensive evidence presented in his report or at least have taken the final step of explicitly drawing the implicit conclusion made clear in his report – that Trump obstructed justice. Instead, his refusal to take this basic step allowed former Attorney General Barr to misrepresent the report and the White House to claim exoneration.
The Ukraine investigation: I testified
about the Trump administration’s use of diplomats to pursue its own
domestic political aims. As a witness, my sense was that the
congressional committee appeared to depend on career bureaucrats to
provide a smoking gun on high-level administration misdeeds when it was
clear that the Trump White House was withholding critical information
regarding the political motivations behind the actions involving
Ukraine. What’s more, congressional decorum was inexplicably maintained
by representatives who failed to call to task their colleagues who had
their own unexplained interactions with actors in the scandal.
Trump’s
First Impeachment: From the transcripts, it is hard not to conclude
that proponents of impeachment in the House and Senate were reduced to
making constitutional and moral appeals in the absence of more critical
information withheld under executive privilege during the Ukraine
investigation. That information would have included the record of
communications among White House officials, their congressional allies,
and Cabinet secretaries.
Trump’s Second Impeachment: This was a
rushed affair, compromised by the withholding of evidence by Trump and
his allies and the cowardice of key actors inside the Trump
administration and Congress. Former administration officials, including
Vice President Pence, were conspicuously silent before and on Jan. 6,
and during the Senate trial. Their subsequent calculated leaks on what
they did during those weeks reek of attempts at career rehabilitation.
If these “concerned officials” had spoken or acted publicly on, before,
or soon after Jan. 6, the country would likely be in a very different
place today.
Acting Now Matters
The Jan. 6 committee is hardly working in a vacuum.
The Jan. 6 committee is hardly working in a vacuum.
It exists alongside a broad second-wave assault on America’s democratic institutions. That assault includes death threats against election officials; racially motivated voter suppression measures; extreme restrictions on reproductive rights; and the political embrace of authoritarianism and a twice-impeached former president. The “big lie” is winning: 70 percent of Republicans now believe the 2020 presidential election result was rigged. As Barton Gellman’s article in The Atlantic notes, “Trump’s next coup has already begun.”
The success of the Jan. 6 investigation therefore is vital to the health of American democracy. The Jan. 6 committee, DOJ, and the White House should be looking at steps they can take to accelerate the process of getting information before the committee. Even allowing for the undue legalism of the American political system, there are options.
Congress could start by enacting legislation to speed the process of enforcing subpoenas. DOJ would have to cooperate and swiftly follow through with criminal proceedings against the likes of Bannon and Meadows. Courts would have to adjudicate challenges to subpoenas on an expedited time frame. The committee could also inject greater transparency into its proceedings instead of selectively leaking information. It could begin by providing the names of the representatives who corresponded with Mark Meadows on Jan. 6.
The White House has a pivotal role to play, too. If the Supreme Court supports the lower courts’ rulings on executive privilege, the administration could more proactively communicate that it recognizes the time constraints on the investigation and create a more rapid review of future tranches of responsive documents for the committee and of claims for executive privilege. It could release relevant documentation that may not be covered by the comprehensive requests that the committee has made to date. And the White House should work closely with leaders at federal agencies – including the Departments of Homeland Security, Justice, and Defense – to facilitate prompt release of probable communications among top officials of those agencies as Jan. 6 unfolded.
Time is not on the committee’s side. In the words of Eugene Robinson, “The January 6 committee needs to get louder. Much louder.” Robert Kagan in the Washington Post has stated that “[o]ur constitutional crisis is already here.” An extraordinary Dec. 17 op-ed by three retired generals warned that the Pentagon “must prepare now for a 2024 insurrection.”
Policymakers and commentators alike can see the alarm bells ringing – and yet, as the disappointments of the Mueller Report, Ukraine investigation, and two Trump impeachments made clear, a sense of alarm is not enough. The Jan. 6 committee must be given the tools it needs to deliver meaningful results in the race against time toward the 2022 midterms.
At
the end of the day, only facts will help the select committee unveil
the truth about Jan. 6. The White House must do everything in its power
to facilitate the quick release of documents by the National Archives
and all other government agencies. Do anything less and the guardrails
of our democracy will be further eroded to the point of collapse – and
we can look forward to the “big lie” taking over the presidential
election in 2024.