This is why the coming battle over Trump cronies who are likely to defy the Jan. 6 select committee’s subpoenas is so important. At stake is not just whether we’ll achieve basic accountability for a sustained effort to overturn U.S. democracy.
Also at stake is whether our system can uphold the rule of law in the face of a concerted campaign to cow good faith actors into accepting that the price of peace is special treatment that places bad actors above the law.
CNN reports that the select committee is likely to refer any Trump advisers and allies who defy subpoenas to the Justice Department for prosecution. As of now, one — Stephen K. Bannon — is not cooperating. What former White House chief of staff Mark Meadows and political adviser Dan Scavino will do remains unclear.
If they have not indicated cooperation by the deposition deadlines of Oct. 14 and Oct. 15, the next step should be to refer the matter for Justice Department prosecution. But as CNN reports, it’s unclear what would happen then:
Holding non-compliant witnesses in criminal contempt would take the Justice Department agreeing to prosecute those individuals in federal court — a matter that Attorney General Merrick Garland has not weighed in on publicly to date or indicated if he would support.
In an interview, Rep. Jamie Raskin (D-Md.), a member of the select committee, weighed in strongly behind the idea that the Justice Department should act aggressively.
“Given the nature of the congressional investigation, the Department of Justice would have every reason to enforce criminal contempt referrals from Congress,” Raskin told me. “This is about protecting the democracy against violent insurrections and coups.”
The straightforward case for this is that it’s essential to upholding the rule of law. As Raskin pointed out, the core dictum that no one is above the law is plainly at stake.
“People are held in criminal contempt all of the time, all over the country, for disobeying subpoenas and not showing up in court,” Raskin said. “There’s nothing remotely unusual about it.”
In other words, this is something we should expect as a matter of due course, not something we should see as an extraordinary step that violates settled understandings.
We do not know how the Justice Department will react to criminal referrals. But in other situations, senior department officials have indicated a reluctance to be perceived as acting politically by re-litigating past battles over Trump, seeing this as a threat to the restoration of normalcy.
In this case, we should be particularly wary of such a mind-set.
That’s because Trump and his GOP allies have sought to construct a barrier of immunity for their crimes against democracy and their assaults on civil order by casting efforts at accountability themselves as the real threat to future civil peace.
When Trump faced impeachment for inciting the mob to violently disrupt his election loss, he hinted more violence might result, posing a “tremendous danger to our country.” His congressional allies fake-worried that such accountability might “incite further violence” or prevent the “healing of this great nation.”
Separately, the House GOP leadership has openly threatened retribution against private companies that honor the Jan. 6 committee’s lawful subpoenas. Again and again, in one way or another, Trump-allied Republicans have tacitly or overtly insisted that immunity from accountability is the price for national stability and future well being.
This sort of thing also games our discourse. It ends up portraying efforts at accountability as themselves representing disruptive norm-violations. This effectively reduces GOP bad faith and bad acting to a natural background feature of our politics, and recasts acting against it, or even efforts at communicating basic truths about it, as the real departure from normality.
Similarly, mainstream news stories are portraying the possibility that President Biden may side against Trump’s claims of executive privilege, by turning over executive branch documents to the select committee, as a potentially destructive breach of norms. Accountability for Trump’s effort to destroy democracy is itself thus elevated to a similar plane of threats to democratic stability and comity.
On the subpoena matter, there’s been some talk that Congress should exercise its own powers against those who defy subpoenas. But that may be premature: Democrats may believe putting this option on the table might lessen pressure on the Justice Department to act.
Obviously the Justice Department’s decision on subpoenas should be made strictly based on what the law dictates. But as Raskin notes, serious consideration of action is merited on the substance.
“Contempt proceedings are the way we deal with people who refuse to honor the justice system’s pursuit of the truth,” Raskin told me. “There is no exception for the cronies of former presidents.”
And the stakes go well beyond the select committee’s investigation.
“Trump somehow hypnotized the country into thinking that the right wing is immune to prosecution for criminal violations,” Raskin said. “That cannot be right. The law applies neutrally to everyone.”
The only way to break this cycle is for Democrats to insist that true accountability is the price for moving on, rather than the other way around.