The House Select Committee investigating the January 6th riot at the U.S. Capitol is exploring ways to enforce its subpoenas after former Donald Trump attempted to assert executive privilege to keep documents from his time in office from being turned over. President Joe Biden concluded that the privilege should not apply and formally rejected the Former Guy’s request on Friday, October 8th.
The White House counsel, Dana Remus, said the documents “shed light on events within the White House on and about Jan. 6 and bear on the Select Committee’s need to understand the facts underlying the most serious attack on the operations of the Federal government since the Civil War.”
The Committee is seeking records from the Trump White House and testimony from former administration officials. Trump notified the National Archives, which maintains the documents, that he formally asserts executive privilege. But under current law, lawmakers have few options. The committee’s best hope may be a change of heart at the Justice Department on whether to prosecute those who refuse to cooperate.
— January 6th Committee (@January6thCmte) October 8, 2021
Trump’s next move would be to sue the National Archives, hoping to prevent the documents from being turned over. However, the courts have never clarified the exact nature of a former president’s ability to assert executive privilege. Trump clearly has some ability to assert it, but his claim is weakened by President Biden’s refusal to recognize it.
Rep. Jamie Raskin, member of the Jan. 6 select committee, on the panel's subpoenas: "The law applies to everybody, including former presidents and including friends of former presidents who are facilitating the incitement of violent insurrection against the union." @MSNBC
— Kyle Griffin (@kylegriffin1) October 12, 2021
Trump has also notified former officials of his administration that he intends to make the same privilege claim regarding their potential testimony before the committee. If they defy the subpoenas and refuse to appear, the House could vote to hold them in contempt of Congress. No one has ever been fined for refusing a congressional demand by subpoena to appear before a committee or to provide documents for an investigation. But the fact that some in Congress are considering it as an option is a sign of the frustration over existing methods, which are ineffective for compelling administration officials to appear or produce documents. Whether Congress has the authority to do so is an open question.
An arrest warrant should be issued for Steve Bannon at midnight tonight.
— MeidasTouch.com (@MeidasTouch) October 12, 2021
The committee has two other options. One is what’s known as the inherent contempt power of Congress. The courts have long established that either house of Congress has the power to round up reluctant witnesses and, if necessary, throw them into holding cells until they agree to talk. But that authority hasn’t been used in nearly a century, and there’s no longer any congressional jail.
Steve Bannon, Mark Meadows and others are refusing Congressional subpoenas. Susan Mcdougal defied a subpoena and Republicans locked her up for a year and a half.
RT if you agree we must #LockThemUp.
— Really American 🇺🇸 (@ReallyAmerican1) October 11, 2021
Congress can also go to court on its own and sue a reluctant witness, urging federal judges to referee the dispute and force the two sides to come to an accommodation on producing evidence. It works, but it is profoundly slow and could be dragged out for years. As an example, NBC News cites a case from two years ago when the House Oversight Committee sued then-Attorney General William Barr and then-Commerce Secretary Wilbur Ross over documents related to putting a citizenship question on the census form. That case is still in court.
Congressional subpoenas are not invitations to testify or submit responsive documents. Compliance is mandatory, and any individual who defies a lawful subpoena can be subject to Contempt of Congress charges under 2 U.S.C. § 192.
— Dave Aronberg (@aronberg) October 11, 2021