When House Speaker Nancy Pelosi (D-Calif.) decided to reject two of the Republicans nominated for the select committee for having publicly denounced the role of the committee and fanning MAGA conspiracy theories, the pundits shook their heads. House Minority Leader Kevin McCarthy (R-Calif.), they insisted, had outplayed her. (Look how angry Republicans are! The committee will look too partisan!)
Instead, Pelosi brought on two of the rare Republican House members who have not lost their spines or their minds. Reps. Liz Cheney (R-Wyo.) and Adam Kinzinger (R-Ill.) not only made the committee bipartisan but also added gravitas and credibility to the undertaking.
Well, no one will care much what the committee will do, some in the chattering class sniffed. And what’s the point of bringing in police officers to testify as to what occurred on Jan. 6?
In fact, the officers’ testimony was mesmerizing and stunning, reminding us of the mob’s thuggishness, racism and contempt for democracy.
Next came the subpoenas for four of former president Donald Trump’s associates and to those who may have helped organize the event. When Stephen K. Bannon raised an utterly bogus claim of executive privilege (which was not available to him in part because he was not a government employee at the time and because President Biden, not Trump, controls the privilege) more in the mainstream media threw up their hands. They’ll never have the nerve to enforce it! The Trump side will run out the clock!
Wrong, and wrong. The committee is unanimous in demanding enforcement of the subpoenas. Cheney told reporters Tuesday, “In general, people are going to have to appear, or … we will move contempt charges against them." This follows comments from other members including Rep. Adam B. Schiff (D-Calif), who declared in an appearance on CNN: “I think we are completely of one mind that if people refuse to respond to questions, refuse to produce documents without justification, that we will hold them in criminal contempt and refer them to the Justice Department.”
Unlike the Trump Justice Department, which collaborated with the then-president’s obstruction of investigations, the Biden Justice Department almost certainly will move to enforce the contempt citations swiftly. And for those expecting this to drag on or the Supreme Court to ride to Trump’s rescue, let’s remember that even the right-wing Supreme Court has upheld Congress’s right to gather information despite regal claims of privilege.
Chief Justice John G. Roberts Jr., writing for the majority, found in Trump v. Vance that even a sitting president could not enjoy immunity from subpoenas: “Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.” If a sitting president is not immune, the underlings of a former president surely are not.
Should Bannon decide to resist, the matter should get quickly resolved. Unlike the right-wing U.S. Court of Appeals for the 5th Circuit that played along with Texas’s abortion bounty advocates, the U.S. Court of Appeals for the District of Columbia Circuit likely will not allow gamesmanship to override the Constitution. Could Bannon show up and take the Fifth? Sure, but the idea of a former consigliere of Trump claiming he might implicate himself criminally would be a nightmare for the “nothing to see here, just move along” crowd.
The Biden administration, as we saw with documents and witness testimony made available to the Senate Judiciary Committee, is going to cooperate to the greatest extent possible with the committee. Congress will get phone records, witness testimony and other compelling evidence.
The committee is already circling around at least one right-wing congressman who may have played a role in the attempted coup. The Senate report, which the Jan. 6 House committee now has in hand, details the interaction between Trump officials and Rep. Scott Perry (R-Pa.) in Trump’s failed effort to get the Justice Department to help invalidate the election (including the effort to oust the acting attorney general). Perry will certainly be a witness. He is precisely the sort of person who might be interested in “flipping” to provide further evidence about higher-ups’ wrongdoing.
In short, no one should underestimate the effectiveness of the Jan. 6 committee. It has already exceeded meager expectations and will, I am confident, turn over more stones. What it finds will probably deepen our understanding of Trump’s determination to pull off a coup and the involvement of his cronies.
In doing so, the committee should enable Americans to grasp the extreme peril the country would face should those involved not be held legally accountable. And it might even prompt a couple Senate Democrats to break through the filibuster to ensure that a future presidential candidate does not try to pull off a similar scheme to undermine elections.