On the afternoon of Jan. 6, 2021, while a mob invaded the U.S. Capitol, President Donald Trump spent three hours sitting in the Oval Office dining room calling various members of the House and Senate, including Kevin McCarthy, Jim Jordan, and Josh Hawley. Wouldn’t you love to know whom he called and what was said? So would the House Select Committee.
The hearings thus far have presented some stunning revelations from the committee’s investigation, including former Attorney General Bill Barr’s testimony that he found Trump to be “detached from reality” for spewing lies that the election was stolen and that Trump was aware his postelection rhetoric was a rallying cry for far-right militia groups. As momentous as these revelations are, we know that the committee will never be able to provide us with the complete picture.
Several former Trump administration officials tied to the Jan. 6 attack have refused to comply with subpoenas from the committee or have “engaged” with the committee by raising legally dubious claims of executive privilege. Just imagine what the public could have learned if Mark Meadows (who was neck-deep in planning for Jan. 6), Steve Bannon and others were compelled to tell Congress everything they knew about the lead-up to the attack and the events of those three fateful hours when American democracy teetered on the brink.
There are two ways for Congress to enforce a subpoena, civilly and criminally. Since the McGahn case, there’s a question as to whether the House has the legal authority to enforce its subpoenas civilly. And whether it’s the House or the Senate doing the enforcing, civil contempt proceedings take too long.
That means that when someone defies a congressional subpoena, Congress doesn’t get the information it needs when it needs it. That is, of course, if Congress ever gets the information. Too often, recalcitrant witnesses can run out the clock, and enforcement proceedings are eventually dropped.
The other method of enforcing congressional subpoenas is through criminal contempt. Unfortunately, these cases must handled by the Department of Justice, which almost always refuses to prosecute administration officials, even former administration officials like Mark Meadows, despite — or because of — a serious conflict of interest that should justify appointing a special prosecutor.
This sorry state of affairs is primarily Congress’s own fault. Too often, Congress puts political expediency ahead of precedent. For example, three years ago, Trump’s former campaign manager Corey Lewandowski “testified” during the hearings on the Robert Mueller report. His performance was so defiant that, had he tried it in any courthouse in America, he would have been jailed for contempt. House members, however, decided not to pursue contempt proceedings against Lewandowski because they thought it would be a distraction.
If, however, Congress had gone after Lewandowski, he would be a helpful example of what happens when you refuse to cooperate with a congressional committee, and there would now be settled law on executive privilege claims, many of which are now being made by witnesses resisting the committee’s investigation.
In other words, if Congress had properly defended its investigative powers in 2019 when Lewandowski thumbed his nose at the House Judiciary Committee, the Jan. 6 Committee wouldn’t have the problems it has now.
People like Kevin McCarthy and Jim Jordan have tried to defy the committee’s subpoenas partly by claiming that the committee has no legislative purpose. That’s nonsense because we can already see a whole host of legislative fixes that will be necessary to shore up our constitutional infrastructure and strengthen our democracy. And the concerted efforts to hide vital information from the committee make it clear that strengthening the congressional ability to enforce subpoenas is at the top of the list.
This should be a bipartisan issue. Congressional Republicans might not be fans of the committee’s purpose, but they should view the efforts to stymie its investigation as an attack on the prerogatives of Congress. Democrats and Republicans win by ensuring that they can get relevant investigative information when they demand it. The goal of reforming congressional subpoena power is to help keep our democracy functioning. And as long as our democracy is functioning, the shoe will, eventually, be on the other foot.
So making headway on congressional subpoena enforcement isn’t just a win for one party. It’s a win for Congress as a whole. It’s a win for the separation of powers by reinforcing Congress’s oversight role. And ultimately, it’s a win for the American people in holding their government accountable.
