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Jan. 6 panel grapples with how to secure testimony from lawmakers, Pence

The House select committee is divided on whether to pursue subpoenas, in part over fears that a protracted legal fight would delay the committee’s goal of issuing a report ahead of the November midterms

Chairman Bennie G. Thompson (D-Miss.) speaks with Vice Chair Liz Cheney (R-Wyo.), right, as the House select committee investigating the Jan. 6 insurrection meets on Oct. 19, 2021. (Jabin Botsford/The Washington Post)
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The House panel investigating the Jan. 6 insurrection is in the middle of a pivotal debate over how aggressively to seek cooperation from key witnesses who are resisting providing testimony to the committee, including several members of Congress and former vice president Mike Pence.

Pence, along with Minority Leader Kevin McCarthy (R-Calif.), and Reps. Scott Perry (R-Pa.) and Jim Jordan (R-Ohio), could help the committee complete a comprehensive picture of President Donald Trump’s role in the Capitol insurrection and the extent of his influence on efforts to disrupt the official certification of Joe Biden’s victory.

But the lawmakers have refused to cooperate, leading the Jan. 6 committee to weigh whether it should issue subpoenas to sitting members of Congress, a step taken only rarely in the past.

The panel is divided on whether to pursue such subpoenas, in part over fears that a protracted legal fight would delay the committee’s goal of issuing a report ahead of the November midterms, according to people familiar with the debate who spoke on the condition of anonymity to reveal internal discussions.

Some members of the committee, including Vice Chair Liz Cheney (R-Wyo.), have signaled an aggressive posture while others, including Chairman Bennie G. Thompson (D-Miss.), have sounded notes of skepticism that such subpoenas could be enforced.

At the same time, the panel has begun preliminary discussions with Pence over how to obtain his account of events, including the sustained pressure he received from Trump and other Republicans to block certification of Biden’s election victory.

There has been little public discussion of calling Trump as a witness or moving to secure his account of events, but “nothing has been ruled out,” a committee staffer said.

For Pence, the committee’s goal would be to get the former vice president to answer questions under oath, ideally in public. Options for obtaining his cooperation have been discussed in preliminary conversations between the committee’s chief counsel, Tim Heaphy, and Pence’s attorney, Richard Cullen, who was just named as counselor to Virginia Gov. Glenn Youngkin (R). But Pence does not want to appear in front of the committee, people close to him say. “I don’t see any situation in which he does,” one top adviser said.

The Attack: Before, During and After

The two lawyers, who are friends and former law partners, have informally discussed the possibility of Pence’s cooperation and how it might occur. Heaphy has expressed the committee’s desire for Pence to answer questions in an on-the-record interview, but the former vice president has been clear from the beginning that he does not wish nor plan to testify, according to people familiar with the conversations.

Some of Pence’s advisers say the setting is beneath the office of the vice president, and Pence has come to believe the committee has become overtly partisan. Answering questions under oath could also be politically damaging to Pence as he eyes a possible 2024 presidential bid and seeks support from Trump voters.

For several weeks, Pence’s advisers said their opinion of the committee soured as the panel appeared to act in a more partisan fashion, emphasizing interest in making criminal referrals and making comments that they felt pressured Pence.

Members talked optimistically about Pence’s cooperation. Thompson last week said during an interview with NPR that members expected this month to ask Pence to voluntarily appear before the committee. He later backtracked on his comment, telling reporters on Monday that he never said an official request was coming.

“[Pence], like a lot of other people, we think, might have something to give to the committee, but we haven’t made a decision to formally invite him to come here,” Thompson said.

Three weeks ago, former Pence chief of staff Marc Short publicly expressed a lack of faith in the panel’s impartiality.

“I also can’t have a lot of confidence that this committee is going to provide some sort of impartial analysis,” Short said on Fox News, a sentiment shared by others in Pence’s orbit.

Jan. 6 committee will consider subpoena for Kevin McCarthy after he refuses to cooperate

Nonetheless, Pence and his team have continued to engage. Two of Pence’s top aides, including Short, are expected to appear before the committee in the coming weeks. Short’s attorney, Emmet Flood, has been involved in negotiations with the committee about the line of questioning for him, according to people familiar with the discussion.

As for Pence, his attorney has suggested alternatives to being questioned under oath, such as written responses to questions or a proffer from the former vice president’s legal team.

The committee wants information on a broad range of topics, including the pressure placed on Pence by Trump and his allies to block the electoral certification on Jan. 6 and personnel moves at the Justice Department, according to a person with knowledge of the committee’s requests. The panel is also interested in any conversations that might have occurred regarding a push for Pence to invoke the 25th Amendment, declare Trump unfit for office, and assume the powers and responsibilities of acting president, the person said.

The committee is also expected to question Greg Jacob, Pence’s former counsel, next month. The committee last fall interviewed J. Michael Luttig, a former federal judge who advised Pence’s legal team in the days leading up to the Jan. 6 vote.

In a related move, Cheney reached out to a longtime friend, former vice president Dan Quayle, who talked with Pence ahead of Jan. 6, according to people familiar with the conversation. In their private discussion, Quayle confirmed that he advised Pence that he had “no choice” but to abide by the instructions of the parliamentarian and to resist suggestions of electoral intervention. The conversation between Pence and Quayle was first reported in the book “Peril,” by Bob Woodward and Robert Costa.

During an interview with The Washington Post on Friday, Quayle acknowledged talking to Cheney but declined to discuss the substance of the conversation. Other than Cheney, Quayle said he has had “no contact whatsoever” with the select committee or its staff.

“I did not notice any hesitation on his part,” Quayle said of his conversation with Pence. “I interpreted his questions as looking for confirmation that what he was going to do was right and that he had no flexibility. That’s the way I read it. Given the pressure he was under, I thought it was perfectly normal, very smart on his part to call me.”

The committee remains undecided over whether it will ultimately subpoena House GOP lawmakers who have rejected its requests for them to voluntarily cooperate. While Thompson has previously said the committee would not hesitate to issue subpoenas, he has expressed reservations about actually enforcing them with GOP lawmakers.

“If we subpoena them and they choose not to come, I’m not aware of a real vehicle that we can force compliance,” Thompson told ABC News last month.

Investigators have been working to identify precedents for subpoenaing sitting members, according to two people familiar with the inquiry. One example they’ve homed in on is the House Ethics Committee’s two-year-long probe into the personal finances of Rep. Charles B. Rangel (D-N.Y.). Rangel, who was ultimately found guilty on 11 ethics charges, was subpoenaed by the investigative subcommittee after refusing repeated requests for a forensic accountant’s report and other documents.

Rob Walker, a former chief counsel and staff director of the Senate and House ethics committees and a former federal prosecutor, said that while he believes that the committee has the authority to subpoena members, there’s a “colorable argument that when the House is undertaking the activity of looking at the conduct of its own members, they should follow the process that’s in place, which is the ethics process.”

Although the committee has a fact-finding — and not a disciplinary — mission, members being subpoenaed could take a different view, Walker said.

“They might argue that the inquiry could have negative consequences for them, whether politically or otherwise, and therefore it’s tantamount to a quasi-disciplinary setting,” he said. “If that is the case, they could have an argument that the House has set up procedures in the Ethics Committee to compel process and cooperation.”

Some lawmakers on the committee have assumed a more aggressive posture. Rep. Jamie B. Raskin (D-Md.) told CNN that there is “nothing preventing the committee from taking” the step to subpoena lawmakers and dismissed the idea that sitting lawmakers are protected from the inquiry by the Constitution, which states that “for any Speech or Debate in either House,” lawmakers in Congress “shall not be questioned in any other Place.”

There is a fear, however, that any litigation could delay the committee’s work for months. But Kim Wehle, a law professor at the University of Baltimore, said the Supreme Court could speed up the process if it grants an expedited review, as it did in a recent case involving coronavirus vaccine mandates.

During an interview on MSNBC on Thursday, Rep. Adam B. Schiff (D-Calif.) reiterated that the committee was still evaluating next steps but suggested “other options than the criminal contempt route.”

“We have certain remedies, potentially, with McCarthy, with Perry, with Jordan, with other House members that we don’t have with a Steve Bannon, for example, or Mark Meadows,” Schiff said, referring to a former Trump political adviser and a former Trump chief of staff who have been subpoenaed. “That is because the House can control its own members, can discipline its own members.”

Alice Crites contributed to this report.

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