January 6th Committee Bows Out With A Whimper
Refused inherent contempt power to imprison Trump for subpoena defiance
Cowardice, thy name is the House Select Committee to Investigate the January 6th Attack on the Capitol!
Yesterday, December 28, 2022, the Committee withdrew its inexcusably belated subpoena issued last October to former President Donald Trump. Committee Chairman, Bennie Thompson (D-Miss) declared that time had run on the Committee’s attempt to obtain documents and testimony relevant to Mr. Trump’s Stop the Steal crime against the Constitution and peaceful transfer of presidential power. Mr. Trump had sued to quash the subpoena and the Committee’s shelf-life ends next January 3.
The Chairman’s explanation was a cover-up of its cowardly dereliction. Mr. Trump was the ringleader of the January 6th insurrection. The Committee’s voluminous final report supplies overwhelming proof. Why did the Committee idle for 14 months before issuing a subpoena to the person holding smoking guns? No law would have prevented the Committee from subpoenaing Trump a second time to address evidence obtained from third parties after his initial testimony.
More important, Chairman Thompson concealed that the Committee had abandoned its mercury-footed inherent contempt power instantly to imprison Mr. Trump for defying its subpoena without pausing for a lead-footed court order. The Supreme Court unanimously affirmed congressional inherent contempt power a century ago in McGrain v. Daugherty (1927). Archeology was not required for the Committee to discover that power standing in plain sight.
The Supreme Court recognized that politics changes at warp speed. Political dynamite today is routinely defused by tomorrow’s events. Time is thus of the essence in congressional investigations and subpoena enforcement.
The Committee’s abandonment of its inherent contempt power was especially puzzling because analogous precedents were on its side. In 1974, the House Judiciary Committee voted an article of impeachment against incumbent President Richard Nixon for flouting four congressional subpoenas for White House tapes. The Committee did not ask a court to validate its subpoenas. Mr. Nixon’s resignation on August 8, 1974, mooted the issue.
More recently, in 2019, the Democratic-controlled House voted an article of impeachment against President Trump for orchestrating the defiance of congressional subpoenas for testimony from aides about his conditioning military assistance to Ukraine and a White House meeting on the Ukrainian President’s announcing a corruption investigation against former Vice President Joe Biden.
In addition, the Supreme Court in United States v. Nixon (1974) held that executive privilege must bow to the needs of criminal justice. The January 6th Committee was pursing far more than criminal justice. It was seeking to preserve the Constitution itself and the peaceful transfer of presidential power from the force and violence condoned if not celebrated by Donald Trump. He is the best witness against himself. On July 23, 2019, Mr. Trump proclaimed, “Then I have Article 2, where I have the right to do anything I want as president. The former President wrote on December 4, 2022, on Truth Social that “all rules …found in the Constitution” should be terminated to reverse the constitutional transfer of power to President Biden on January 20, 2021. Mr. Trump repeatedly browbeat Vice President Mike Pence—even endangering his life on January 6—screaming at him to violate the Twelfth Amendment and Electoral Count Act in refusing to count state-certified electoral votes.
Is anything more compelling than forcing Mr. Trump to testify and supply documents concerning his actions and serial derelictions on January 6th? (Mr. Trump would retain the right to plead the Fifth Amendment privilege against compulsory self-incrimination). At large, Mr. Trump is like Napoleon at Elba, plotting to return to the White House, by force and violence if necessary, to crown himself Emperor for Life.
The Committee did not only go limp on subpoena enforcement against Mr. Trump. It refused a subpoena entirely to Vice President Pence, who probably possesses a half-dozen or more smoking guns against the former President. The Committee also refused to invoke its inherent contempt power to secure subpoenaed evidence from an array of prime witnesses. They include former Chief of Staff Mark Meadows, former deputy White House chief of staff for communications Dan Scavino, and Congressmen Kevin McCarthy (R-CA), Jim Jordan (R-OH), Scott Perry (R-PA), Mo Brooks (R-ALA), and Andy Biggs (R-AZ).
Additionally, the Committee permitted White House Counsel Pat Cipollone, to conceal conversations with President Trump. But as the United States Court of Appeals for the District of Columbia Circuit held in In re: Bruce R. Lindsey (1988), “[T]he Office of the President is a part of the federal government, consisting of government employees doing government business, and neither legal authority nor policy nor experience suggests that a federal government entity can maintain the ordinary common law attorney-client privilege to withhold information relating to a federal criminal offense.”
So why did the January 6th Committee pull its punches? The law was on its side. The facts were on its side. Public opinion was on its side. Voices against the ongoing prosecutions and sentencing of the January 6th insurrectionists are virtually inaudible.
The most plausible answer is unflattering. Democrats worried that the inherent contempt power precedent could be turned against them when Republicans control Congress. You can probably count on one hand the number of Members who do not have skeletons in their closet. Mark Twain quipped, “There is no distinctly native American criminal class except Congress.”
In sum, the January 6th Committee did not do its job to protect Democrats.