The Washington PostDemocracy Dies in Darkness

What subpoenaing legislator phone records about Jan. 6 might reveal

Pro-Trump protesters storm into the U.S. Capitol during clashes with police on Jan. 6. (Shannon Stapleton/Reuters)
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It seems probable at this point that the violence at the U.S. Capitol on Jan. 6 was a function of a cascading set of circumstances: A pattern of dishonesty from President Donald Trump encouraging the false belief that the election was stolen. Amplification of those assertions from a galaxy of attention-hounds, grifters and media personalities. A focus on Jan. 6 as the effort’s Alamo, with Trump again beating the drum the loudest. Then, with everyone there and everyone increasingly angry, with everyone feeding on one another, it took only a tiny push for a mob of people to tacitly agree to try to grind American democracy to a halt.

As was reported last week, there’s little evidence to date that there was a deliberate plan to interrupt the counting of electoral votes in that building on that day. There were small groups that intended to escalate the threat — members of far-right groups like the Proud Boys and Oathkeepers — but most of the hundreds of people who’ve been arrested for their actions don’t seem to have been part of any coordinated plan to enter the Capitol. But that fact alone doesn’t absolve those who participated or those who, like Trump, were instrumental in the fact that it did.

While all of the above appears to be true, it is not the case that it is known to be true. That’s one of the points of the House committee that’s investigating the day, that there are still questions to be answered about what occurred, including ones that can speak to the accuracy of the presentation above. But there’s another question that’s been lingering around the day’s violence from the moment it began, one that the committee just took a significant step to answer: What, if anything, did members of Congress know about the riot before it began or as it was underway?

The importance of this question is itself unclear, depending, to a large extent, on the answer. It is the case that members of Congress (sitting and newly minted) encouraged people to come to Washington that day and certainly that they echoed Trump’s false fraud claims. Did some go further? Were any aware that some of those in attendance had expressed a desire to go further than simply protesting? If so, how important was that knowledge itself?

There are at least four things we know about that raise questions along these lines.

  1. Multiple members of Congress spoke with Trump that day by phone, including House Minority Leader Kevin McCarthy (R-Calif.) and Rep. Jim Jordan (R-Ohio), who was reportedly joined by Rep. Matt Gaetz (R-Fla.). Did Trump pressure those legislators to delay the electoral vote count (as his attorney had in a voice mail sent to a senator)? Did a conversation with Trump influence Gaetz’s speech later that evening in which he tried to blame elements of antifa for the violence?
  2. Multiple Democratic legislators alleged that large group tours had been conducted by colleagues, including Rep. Lauren Boebert (R-Colo.), in the days before the riot, with the sometimes stated implication that this was somehow an effort to familiarize people with the building. Boebert denied the allegation. (There’s some recent precedent for involvement of this kind. A Republican state representative in Oregon was expelled from the legislature in that state earlier this year for opening a locked door at the state Capitol to allow right-wing protesters inside.)
  3. An ally of Rep. Marjorie Taylor Greene (R-Ga.), Anthony Aguero, was inside the Capitol that day. He was also seen in a 2019 video in which Greene, then not yet a legislator, tried to accost Rep. Alexandria Ocasio-Cortez (D-N.Y.) at her Capitol Hill office.
  4. One of the organizers of a rally at the Capitol, a right-wing activist name Ali Alexander, alleged in a recording that he’d worked with several Republican representatives in the days before the rally. Alexander claimed that he and Reps. Andy Biggs (Ariz.), Mo Brooks (Ala.) and Paul A. Gosar (Ariz.) had “schemed up [ways] of putting maximum pressure on Congress while they were voting.”

None of this may be significant at all. Some or most of the allegations may be false. We may learn that there was some contact between those participating in the riot and legislators that didn’t amount to anything substantial. We simply don’t know.

The point is that there are legitimate questions to be answered about possible overlap between participants in the riot, Trump and legislators. So, to answer those questions, the committee has reportedly asked telecommunications companies to preserve phone records involving a number of as-yet-unidentified legislators. Sources told CNN that the list includes each of the people named above, among others.

It’s useful to note that there is precedent for an investigative committee to seek phone records from government officials. In 1995, for example, the Senate committee investigating President Bill Clinton’s Whitewater real estate deal issued dozens of subpoenas for phone records from the Clintons, their allies, government officials and outside parties.

The response from House Republicans, though, was apoplectic. McCarthy released a statement framing the request as a slippery slope that “would put every American with a phone or computer in the crosshairs of a surveillance state run by Democrat politicians.” (Former Michigan representative Justin Amash responded by pointing out that McCarthy had repeatedly supported the bulk collection of telecommunications metadata for Americans under the auspices of the fight against terrorism.)

“If these companies comply with the Democrat order to turn over private information, they are in violation of federal law and subject to losing their ability to operate in the United States,” McCarthy wrote. (It’s not clear what law would be violated by responding to a congressional subpoena.) “If companies still choose to violate federal law, a Republican majority will not forget and will stand with Americans to hold them fully accountable under the law.”

As former Obama administration official Dan Pfeiffer put it on Twitter, this could be framed as “the subject of an investigation threatening potential witnesses with taxpayer funded retribution.” According to CNN’s report, though, McCarthy’s name wasn’t included. But Pfeiffer’s argument could apply to Greene, who, in an interview on Fox News, sent a similar message to the companies: “if [these companies] go along with this, they will be shut down. And that’s a promise.” At another point, she suggested that this was an effort to “hurt us in the next election.”

It’s easy to fall into the trap of assuming that opposition to the collection of information implies guilt. It doesn’t and shouldn’t. It’s also obviously the case that congressional committees run by one party seeking communications records targeting members of the opposition is a unique and risky situation. The events of Jan. 6 would seem to serve as the sort of exception that would warrant such a request — or, depending how you look at it, might serve as a convenient excuse.

Of course, that’s not what’s happened. The request has only been to preserve records so that, if needed, they can be provided to the committee.

That might never happen. The committee might find other evidence or take testimony that answers its questions. It could determine from interviews and available documents that legislators weren’t in communication with any of the protesters at all. It could independently determine that some legislator spoke with some rioter on that morning offering them appreciation and nothing more. Everything could simply be what it appears to have been, a mob asked to come to Washington and encouraged into fury.

Or there could be more to it.

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