The House select committee probing the January 6 insurrection placed its credibility and legal clout deeper into the hands of Attorney General Merrick Garland on Monday with a new flurry of subpoenas targeting cronies of ex-President Donald Trump.
For the committee to retain hopes of compelling testimony from the group, it may need the Justice Department to initiate a prosecution against another Trump adviser, Steve Bannon, who has already defied a subpoena. The former President’s populist alter ego earned a rare contempt of Congress citation for his intransigence. But two-and-half weeks on, the department has yet to say whether it will act on that gambit and indict Bannon through the Washington, DC, US Attorney’s office. Without such a move, the committee’s enforcement capacity looks in serious doubt as it races to conclude before Democrats are at risk of losing the House of Representatives in next year’s midterm elections.
There are no current and public signs that Garland is feeling pressure to act quickly. In fact, a deliberative process would comply with his effort to shield the department from politicization after Trump weaponized it to protect himself during a scandal-plagued presidency and in his effort to steal the 2020 election. But that also means the new batch of six Trump confidants, who have been subpoenaed for their alleged role in amplifying Trump’s lie about election fraud or abetting his coup attempt earlier this year, have reason to replicate the obstruction, at least for now. And even if Bannon is prosecuted, a long process of court cases and appeals could bog down the committee in a legal nightmare.
Such a scenario would not only allow Trump aides to outwit the committee’s efforts to find the truth about the most flagrant assault on a US election in modern history. It could gut the power of Congress in the future and limit its constitutional role of serving as a check and balance on the executive branch. And it would also mean that Trump, who incited a mob to march on Congress and disrupt the certification of President Joe Biden’s election win, would escape a reckoning yet again, even as he and his party paper over his autocratic tendencies ahead of a likely bid for the 2024 GOP nomination. The refusal of Trump’s orbit to submit to scrutiny is nothing new; it was a feature of both his impeachments, including over the insurrection earlier this year.
New subpoenas target Trump’s campaign and ‘war room’ staff
The six subpoenas issued on Monday targeted conservative lawyer John Eastman, former New York City Police Commissioner Bernard Kerik, Trump campaign officials Bill Stepien, Jason Miller and Angela McCallum, and former national security adviser Michael Flynn. The list includes some of Trump’s most hardcore loyalists. Flynn and Kerik, for instance, received presidential pardons. While it is possible some of the group might decide to talk to the committee, it would be no surprise if most declined, given the Trump White House’s enduring resistance to disclosure and accountability.
“If Merrick Garland does not prosecute Steve Bannon, all these other witnesses … they are going to have no deterrent either and they are going to see it as a free-for-all to do what they will. So there is a lot riding on what Merrick Garland decides to do here,” CNN legal analyst Elie Honig said.
Garland refused to discuss his deliberations in an unrelated media appearance Monday. The roughly two-week gap after Bannon’s contempt citation is hardly a lifetime in legal terms, however, so it would be unwise to read anything into it yet.
California Democratic Rep. Adam Schiff, a member of the House select committee, said on CNN on Monday evening that the Justice Department needed time to study the case and precedent but said acting to enforce congressional subpoenas was crucial.
“If the Justice Department doesn’t hold Steve Bannon accountable, it only lends credence to the idea that some people are above the law and that cannot be true in this country,” Schiff said on “Cuomo Prime Time.”
The new subpoenas followed the refusal of another witness, former Justice Department official Jeffrey Clark, to answer questions from the committee on Friday, citing Trump’s assertions of executive privilege and attorney-client privilege.
But like Bannon, the six potential witnesses subpoenaed on Monday were not serving government officials at the time of the insurrection so should have no protection under the doctrine that allows presidents to revive confidential advice from their official advisers. The extent to which the custom applies to ex-presidents is also a gray area. And Biden, with whom final adjudications of privilege now rest given his constitutional role, has declined to comply with Trump’s bid for the shielding of hundreds of White House documents.
Trump’s latest delaying tactic
But making broad, and what many analysts see as frivolous, executive privilege assertions could allow the former President to frustrate the committee and hamper the search for truth for months. That would have grave implications for the US political system and the separation of powers, said former Ohio Gov. John Kasich, who is also a former Republican member of Congress.
“If nothing happens, if you can just say, ‘I don’t really care what you think,’ I think you lose your power and I think that Congress needs to be protective of that power,” Kasich told CNN’s Wolf Blitzer on “The Situation Room.”
“Now it’s about January 6, but how many other things will come down the road and people will say, ‘I don’t have to show up?’”
The committee said Monday the six new subpoenas targeted Trump associates who helped perpetuate the lie that the 2020 election was stolen.
“The Select Committee needs to know every detail about their efforts to overturn the election, including who they were talking to in the White House and in Congress, what connections they had with rallies that escalated into a riot, and who paid for it all,” chairman Bennie Thompson, a Mississippi Democrat, said in a statement.
Perhaps the most prominent member of the group is Eastman, who crafted a blueprint for then-Vice President Mike Pence to throw the election to the House of Representatives, where Republican delegations could award Trump a second term.
The committee is under pressure to produce a legal argument that it has a legislative purpose for its efforts, and some members have spoken of drafting new laws that could thwart similar attempts to the one laid out by Eastman. In the end, Pence concluded he had no power to overrule the will of voters who had chosen Biden – much to Trump’s fury.
CNN’s KFile reported last month that Eastman said on Bannon’s radio show that Pence had the power to throw the election to the House if he had “courage and the spine.” His memo sketched a scenario whereby the vice president would disregard seven states’ Electoral College votes – making sure no candidate received the 270 Electoral College votes needed for victory. Since each state delegation had one vote to cast for president, Trump would win since Republicans controlled 26 state delegations.
The subpoenas also mark a new twist in the sinister and often bizarre tale of Flynn, a retired lieutenant general and former head of the Defense Intelligence Agency who transformed into a vehement pro-Trump conspiracy theorist. Flynn was forced to resign as national security adviser within days of Trump taking office in 2017 after lying to Pence about a call with the Russian ambassador. Trump pardoned Flynn for lying to the FBI about his contacts with Moscow’s envoy.
The committee said in the statement that it wanted to interview Flynn about a December 2020 meeting in the Oval Office during which “participants discussed seizing voting machines, declaring a national emergency, invoking certain national security emergency powers, and continuing to spread the false message that the November 2020 election had been tainted by widespread fraud.” According to the committee, Flynn also gave an interview to Newsmax TV and spoke about “seizing voting machines, foreign influence in the election, and the purported precedent for deploying military troops and declaring martial law to ‘rerun’ the election.”
The committee cited Miller’s presence at a self-styled command center for Trump allies at the Willard Hotel in Washington in January. The panel also says Stepien and Miller were part of Trump’s “Stop the Steal” effort. It says it has information that McCallum may have been involved in efforts to pressure Michigan state legislators to overrule Biden’s Wolverine State victory. And Kerik, an associate of former Trump personal lawyer Rudy Giuliani, has previously confirmed to CNN that he paid for hotel rooms and suites in Washington used as “election-related command centers.” Trump pardoned Kerik over a conviction for multiple felonies including tax charges.
The broad scope of Monday’s subpoenas confirms that the committee is looking beyond the events of January 6 and is delving deep into Trump’s longer-term plotting to overthrow the election. But the chances of all those subpoenaed eventually testifying to the committee seem somewhat unlikely – whatever happens to Bannon – unless the Justice Department is willing to wage multiple cases against ex-Trump officials who all refuse to cooperate.
In that sense, the panel – which has already interviewed 150 witnesses behind closed doors – may be using the subpoenas to underscore the broad nature of suspicious activity in Trump’s orbit.