Two parallel realities are emerging as the House select committee investigating the January 6 attack on the US Capitol continues to build its investigation. While a growing list of individuals are cooperating, a small but key group of former President Donald Trump’s allies continue to stonewall the panel. Information serves as the committee’s most valuable currency on both fronts, while the clock is becoming its worst enemy.
In a public show of the reach of the House probe, four top subpoena targets were brought in for depositions Thursday on Capitol Hill, where TV cameras captured at least two of them going behind closed doors. And on a busy deposition day, committee members have begun touting that the number of witnesses interviewed has reached 300.
Kash Patel, a former chief of staff to then-acting Secretary of Defense Christopher Miller, “Stop the Steal” rally organizer Ali Alexander, conservative lawyer John Eastman and Chris Krebs, the former director of the Cybersecurity and Infrastructure Security Agency, all met with the committee on Thursday.
“The investigation is firing on all cylinders,” GOP Rep. Liz Cheney, the committee vice chair, tweeted. The Wyoming Republican ticked off the committee’s accomplishments, including receiving “exceptionally interesting and important documents” from witnesses like Mark Meadows, Trump’s former chief of staff who is no longer cooperating with the committee.
“Do not be misled: President Trump is trying to hide what happened on January 6th and to delay and obstruct. We will not let that happen,” Cheney added.
And yet, the panel is also navigating a series of new challenges as a growing number of top Trump allies refuse to cooperate and the Justice system continues to move at a pace that does not align with the panel’s investigative timeline. It’s widely assumed that Republicans, should they win the House majority next fall, will shut down the probe.
The committee plans to move forward with criminal contempt charges against Meadows next week, but such a case, if brought by prosecutors, would take months to play out. The criminal contempt case for Steve Bannon, also charged with contempt of Congress, has been scheduled by a federal judge for trial on July 18 – a date that could push back even further.
And an emerging strategy for top Trump allies to plead the Fifth Amendment instead of testifying presents a new roadblock for the committee to navigate as it races against the clock to get the information it needs.
Framing obstructionists as outliers
Committee members remain steadfast that even in the face of multiple stonewalling tactics, there are still plenty of ways to build out their investigation on what happened on January 6.
While several of the individuals believed to be directly involved in efforts to overturn the 2020 election or who maintain first-hand knowledge of those events have made clear they do not intend to cooperate, the committee continues to push forward with its work – much of which is happening behind closed doors.
Committee members also believe that based on their wide net of information sources, they do not necessarily need to get the information from individuals like Meadows directly. They also think their swift actions to move on those who are not cooperating are convincing others to talk.
“These are the outliers,” Democratic Rep. Adam Schiff, a committee member, said of individuals like Meadows.
“Now these outliers still have very important information, so I don’t want to minimize the fact that we should hear from them and we’re going to do everything we can. But nonetheless, the fact that we are moving with expedition to hold them accountable is already barring results with others,” the California Democrat added.
Democratic Rep. Bennie Thompson, who chairs the committee, is not afraid Meadows’ lack of compliance will hinder the panel’s investigation.
“There are a lot of people we have to talk to. Our investigation won’t rise or fall on Mr. Meadows by himself. So, we’ll look forward to getting all we can from him and let the Department of Justice handle it after that,” the Mississippi Democrat said.
“We’re going to use every tool available in order to hold folks accountable,” Democratic Rep. Pete Aguilar of California, who also serves on the panel, told CNN. “But clearly for some of them, a small portion of their intent may be to run out the clock. We’re not going to be deterred. We’re going to continue to take testimony. We’re going to continue to hear from folks and we have a robust roster ahead of us in the next couple of weeks.”
Rep. Stephanie Murphy, another member on the committee, said that while the panel will continue to do all it can to compel the testimony of witnesses like Bannon and Meadows, they still believe they will be able to get the information they are looking for with or without their help.
“To be fair, it’s only a very handful of people who want to risk jail time and fines for contempt of Congress who are obstructing our process,” the Florida Democrat said. “The vast majority of the people that we have reached out to are providing us with information, with evidence, with text messages, with emails, with details of conversations that they have been a party to. So these people are well within their right to not cooperate, but it’s not as if we’re not going to get to the information we need.”
All options lead to a race against the clock
The committee has several options to address individuals who refuse to cooperate: criminal contempt, which can result in a sentencing and fine if convicted but is slow-moving; civil contempt, which forces an individual to obey a court order but also can get tied up in court; or inherent contempt, which enables the House to impose penalties directly against individuals refusing to comply with subpoenas but would require the committee to create a whole new apparatus for making that happen.
“There are costs and benefits for each mechanism of coercing people’s compliance with the law,” Democratic Rep. Jamie Raskin of Maryland said when weighing these options.
So far, the committee has chosen the criminal contempt route to deal with witnesses who are not cooperating, but that option is proving to be slow and could force the committee to reconsider its course of action.
In light of Bannon’s summer court date, Thompson acknowledged that “justice sometimes is not as fast as you would like it to be,” but added the lapse of time is “not a deal breaker by any imagination” that would prevent the committee from continuing to use that strategy.
“We are going to follow the law along the way,” Raskin told CNN. “Obviously, we are in a race against time. It’s a beat the clock situation. So, we just hope that any competent judicial authorities that get involved recognize the urgency of what we’re doing.”
But from Schiff’s perspective, simply moving swiftly to hold Bannon in contempt has had an impact on other witnesses.
“The mere fact that Steve Bannon has been prosecuted has caused other people to cooperate. And the fact that we are willing to enforce the law, that we are willing to hold people in criminal contempt and that they will have to answer charges is motivating others to cooperate,” he said.
‘Some coordination’ to use Fifth Amendment as delay tactic
The committee is also facing a new delay tactic: individuals pleading the Fifth Amendment.
Invoking that right is usually done to avoid answering specific questions as it protects a person from being “compelled in any criminal case to be a witness against himself.” While taking the Fifth can have negative implications depending on the circumstance, the US Supreme Court has long regarded the right against self-incrimination as a venerable part of the Constitution and tried to ensure that a witness’ silence not be equated with guilt.
John Eastman, a conservative lawyer who helped craft a questionable legal theory that then-Vice President Mike Pence had the constitutional authority to interrupt the certification of the 2020 presidential election results, signaled ahead of his meeting with the committee on Thursday that he would be taking the Fifth Amendment. A source familiar with the meeting did not offer any details about his deposition or whether Eastman did plead the Fifth.
In addition to Eastman, former Department of Justice official Jeffrey Clark, who is a central figure in the run-up to the riot and is accused of attempting to use Justice Department authority to overturn the election, and Roger Stone, a longtime Republican operative and Trump ally, have all told the committee they will not cooperate and will plead the Fifth Amendment. The committee was ready to move forward with holding Clark in contempt but is giving him another chance to testify as he says he plans to plead the Fifth.
“I don’t think there’s any question that there’s some coordination among those who’ve been subpoenaed as an effort to obstruct the investigation,” Schiff said. “But we, you know, we are determined to press forward and overcome whatever obstacles are thrown our way.”
With Clark, Eastman and Stone expected to invoke these protections against self-incrimination, it’s unclear how much information the committee will receive from them or if it will be satisfied with their level of participation.
If they are answering the committee’s questions in their depositions by pleading the Fifth, the panel will likely have to stop the process there. But if they continue to stonewall the committee, and invoke the Fifth Amendment in ways the committee deems illegitimate, the panel will likely proceed with holding them in criminal contempt.
“If they’re asserting the fifth merely to cater to the President’s whims or cover up for the President, that is not a proper use of the privilege. But we will have to do our best to divine whether they’re properly invoking the fifth or using it as a stratagem to keep information,” Schiff said.
“Every American can do it,” Thompson told CNN, noting the constitutional right. “So, we’ll just have to see what happens.”
As Raskin points out, the committee has the option to grant individuals who plead the Fifth “use immunity,” which means that the panel guarantees them their testimony will not be used against them in a prosecution.
“At that point, they have to testify and if they don’t, they are guilty of contempt,” Raskin said.
“This is a system of due process. You know, we don’t have a system based on inquisition,” he added. “Even people who are violating the law enjoy their rights under constitutional due process.”
Still, members believe the fraction of individuals choosing this route is small and is offset by how many subpoenaed individuals are cooperating.
“There’s so many,” Aguilar said of the people who continue to talk. “For everyone who may not want to talk to us, there were dozens and a lot of connections that we continue to make in the investigation.”