January 6th marked the first major breach of the U.S. Capitol since the War of 1812, and the first time the constitutionally-mandated vote to enable the peaceful transfer of power was delayed by violence.
After previous national tragedies, Congress undertook comprehensive investigations and proposed reforms to prevent their recurrence. Yet here, where Congress itself was the target of the attack, lawmakers’ efforts to examine the January 6th insurrection have so far been thin and scattershot. Various House committees have held hearings, featuring conflicting and parsimonious testimony. Others have made information requests. And earlier this month, Senate Homeland Security and Rules committees staff produced what the New York Times rightly described as a “modest report.”
Preventing similar attacks—or worse—will require piecing together a complete picture of events and their causes. But we are nowhere near a comprehensive chronicling of January 6th. To get there, Congress will need to arm itself with the ability to access the facts, including from an executive branch disinclined to cooperate. As the House in particular contemplates options for a comprehensive investigation, it must ensure that any inquiry is powerfully equipped to compel compliance with its demands for information.
We spell out specific measures the House can adopt in pursuit of a robust investigation, and precedents for each of them.
Attorney General Garland Extends Bill Barr’s Extremism on Executive Power
The most focused effort so far to investigate January 6th has come from investigators on the Senate Homeland Security and Rules committees staff. While Senate Minority Leader Mitch McConnell cited their efforts as reason not to convene an independent January 6th commission, the committees have been impaired by time constraints; equipped only with “a dozen or so staff members… also responsible for maintaining the committees’ regular work at the same time;” and adopted a narrow scope focused exclusively on bureaucratic security failings that “only added to the unanswered questions about the attack.” As Quinta Jurecic and Molly Reynolds at Lawfare summarize: the Senate staff report, which details some of what happened, but largely side-steps why, is “profoundly incomplete.”
The most troubling reason for the Senate investigation’s limitations is lack of cooperation from the executive branch. As the report notes, “the Department of Justice and DHS have yet to fully comply with the Committees’ requests for information,” leaving unanswered questions as fundamental as which federal agency was the designated lead for security operations on January 6th (the Department of Defense said it was the Justice Department; the Justice Department said it was not). House committees have fared no better, and as House Committee on Oversight and Reform Chairwoman Carolyn Maloney warned last week, the executive branch’s ongoing failure to cooperate “makes us more vulnerable to another attack.”
That executive agencies are flatly ignoring congressional requests related to a violent attack on the Capitol is a threat to national security and dangerously undermines the Constitution’s separation of powers, but it is not altogether surprising.
Recent years have seen an alarming escalation in executive branch dismissiveness of powers held by co-equal branches of government, as with the Trump administration’s practice of issuing blanket policies of noncompliance with congressional requests and challenging the courts’ jurisdiction to consider them. But the roots of noncompliance run deep. For decades, administrations of both parties have worked to erode norms of compliance and neuter Congress’s enforcement tools, including its ability to lawfully enforce its subpoenas. The Justice Department’s Office of Legal Counsel under Attorney General Bill Barr was, after all, simply doubling down on an Office of Legal Counsel opinion from the Obama Administration when it advised that Trump’s White House Counsel Don McGahn could ignore a congressional subpoena. And in the face of a concerted executive effort to deprive lawmakers of their oversight powers, Congress has too often acquiesced.
Still, there was reason to hope that a new administration and new decision makers at the Justice Department and in the White House Counsel’s Office would mean a new approach. That hope is dimming. To date, and to the surprise and dismay of some of the new Attorney General’s supporters, the Justice Department under Merrick Garland has largely continued the maximalist approach to presidential power pressed by his predecessors Bill Barr and Jeff Sessions. The department is continuing the fight to withhold a memo on Trump’s obstruction of justice identified by Special Counsel Robert Mueller, despite a blistering opinion from Judge Amy Berman Jackson who found that the department misled the court on the memo’s contents. The department is also defending a suit against Barr for the violent clearing of peaceful protesters from Lafayette Square in Washington, DC. And it has chosen to appeal a district court’s decision that Trump’s bullying of a woman who accused him of raping her is not an official presidential act simply because he defamed her at a press conference. Positions that drew strong rebukes under the previous administration as dangerous expansions of executive power are now being sanitized and solidified by the Biden administration’s Justice Department.
This posture on executive power foreshadows serious obstacles to fully examining the facts, causes, and lessons of January 6th. Now that Senate Republicans have filibustered the creation of an independent commission, responsibility falls on Congress to carry the investigative work forward. Options range from allowing the current amalgamation of congressional committees to continue their work, to tasking a standing committee with leading the inquiry, to establishing a select committee in the House. Each has trade-offs. But the success of any will hinge on whether Congress decides to update and make use of its moribund subpoena compliance and enforcement tools against a recalcitrant executive.
How Congress Can Bring the Executive Branch to the Negotiating Table
Congress has access to a powerful constitutional toolbox to secure answers about January 6th. As the Supreme Court has reiterated time and again, Congress’s power to obtain information is “broad” and “indispensable.” Otherwise, “Congress would be shooting in the dark” as it carries out its constitutional duties. This includes its authority to issue subpoenas, including subpoenas to the executive branch, and to enforce them. In theory, Congress can go far in compelling cooperation with its demands for information, whether from the FBI or from Facebook.
In practice, however, that toolbox is in dire need of modernization. Although Congress’s authority to secure information is expansive, that authority is meaningful only insofar as it can be practically enforced. A committee investigating January 6th has at least three options to compel compliance with its subpoenas; without updates, even a select committee’s work is unlikely to be effective.
Option 1: Civil enforcement of subpoenas
Civil litigation is Congress’s newest method of attempted enforcement, and since 2008, the only method seriously pursued. The legislation to create a January 6 Commission would have authorized the commission to seek enforcement through a U.S. district court, just as other House committees have recently done in the face of executive branch obstruction. But civil suits rarely—if ever—bode well for Congress. Litigation is lengthy, and any suits brought by a committee investigating January 6th could take years to work their way through the courts. The suit brought by the House Judiciary Committee against former White House Counsel McGahn was settled last month, with a new President and a new Congress—and 750 days after the committee issued its subpoena. This was among the speedier resolutions.
Unlike the Senate, the House also has failed to provide itself with a statutory cause of action in order to seek judicial enforcement of its subpoenas. Without jurisdictional clarity, courts can—and have—simply refused to intervene.
Congress could legislate solutions to address these shortcomings. Included in the Protecting Our Democracy Act, for example, are provisions to iron-out the wrinkles in civil actions to enforce subpoenas, such as expedited judicial proceedings. Strengthening judicial enforcement would be a helpful step forward. As a practical matter, though, legislation is unlikely to move fast enough for any urgent investigative work. Even if it were, problems remain. Chief among them is that courts are unlikely to forcefully vindicate Congress’s institutional interests vis-a-vis the executive branch. In no case to date has the judiciary delivered clear enforcement decisions in Congress’s favor. Even ostensibly favorable rulings have in reality been a mixed bag.
Regardless, Congress should not have to rely on another branch to enforce its right to investigate an assault on itself. Two constitutionally-grounded options remain.
Option 2: Civil penalties
Congress’s inherent power to punish nonmembers for obstructing its work was the predominant method used to effectuate its investigative powers for much of American history, upheld in multiple early Supreme Court decisions. Rather than rely on a court’s contempt power to compel compliance, Congress traditionally relied on its own. Historically, Congress enforced inherent contempt through arrests by its sergeant-at-arms. But arrests—which fell out of favor by the 1930s—are not the only tool available. Through a chamber resolution, the House could arm a committee investigating January 6th with the authority to levy fines as a modern method of enforcement, establishing a concrete cost to noncompliance where there are currently none.
A set schedule of monetary penalties for a narrow band of current and former senior officials could be triggered by a contempt citation and collected by the Office of General Counsel (say, through contracting with a collection agency). A House resolution to this effect was introduced last June and reintroduced this year; similar language could be incorporated into a resolution establishing a select committee or adopted in support of any standing committee inquiries that may continue. There is also legal precedent for the use of monetary penalties. In Jurney v. MacCracken (1935), for instance, the Supreme Court found that Congress’s inherent contempt power is “governed by the same principles as the power of the judiciary to punish for contempt,” which includes levying fines. Last year, in declining to enforce a House committee’s subpoena of an executive branch official, the U.S. Court of Appeals for the D.C. Circuit reminded the committee that “Congress has long relied on its own devices” for enforcing its subpoenas, inviting it to do so once again.
Option 3: Criminal penalties
As another tool, the House can make better use of the federal law that mandates compliance with its subpoenas. In 1857, Congress passed a law making it a crime to refuse to testify or produce documents in response to congressional subpoenas, and intended for that law to apply to executive branch officials as well as private entities. To “aid each of the Houses in the discharge of its constitutional functions,” this statutory contempt procedure was designed to complement Congress’s inherent contempt power by empowering the relevant subcommittee, committee, or chamber of Congress to refer contempt citations to a U.S. attorney for prosecution as a more efficient method of enforcement.
The threat of criminal prosecution long served as an incentive for subpoenaed individuals to negotiate with lawmakers and accommodate their requests, including cabinet-level officials. But in recent decades, a Justice Department increasingly responsive to executive branch interests at the expense of the law has declined to enforce the criminal contempt statute when it implicates executive officials. Twice now, an incumbent Attorney General has been held in criminal contempt of Congress; unsurprisingly, each declined to greenlight their own prosecution. Clearly, Congress requires a less conflicted arrangement to enforce the statute against, at a minimum, sitting executive branch officials.
Congress could pursue legislative solutions to unstick the enforcement process, such as by amending the criminal contempt statute to establish a special counsel exclusively charged with prosecuting contempt citations. But again, legislation is unlikely to move quickly enough for the purposes of a January 6th investigation, and Congress may even have to contemplate a veto. This, though, should not preclude the relevant investigative committee from selectively relying on the existing statutory contempt process. Congress explicitly equipped the 9/11 Commission with this enforcement option, as it did various other congressional commissions.
The Justice Department, leaning into its conflict of interest, will almost certainly hide behind the guise of prosecutorial discretion or the like if the individual held in contempt is an executive branch official. But the same should not be true if the contemnor in question is a private entity. Consider, for instance, the possibility that an executive from a technology company—perhaps one with a history of misleading Congress—refuses to fully cooperate with the January 6th investigation in violation of federal law. The relevant committee can, and should, hold the individual in criminal contempt of Congress and certify the citation to the Justice Department. Obstructing Congress’s work is a crime. As a component part of its compliance toolkit, the House should make clear that it intends to use the statute—“an act necessary and proper for carrying into execution the powers vested in… each House”—as it pursues a comprehensive investigation of January 6th.
These proposals can be effectuated by the House alone, which is moving forward with its own investigation precisely because a legislative solution—the January 6th Commission—appears to have failed. Thus, it will need to rely on chamber rules or resolutions and existing law to equip a committee with improved compliance and enforcement tools.
A Crack in the Wall?
It is possible, of course, that the executive branch proves more cooperative with a January 6th inquiry than recent history would suggest. And in fact, a potential crack in the wall appeared last week in the department’s willingness to turn over certain documents, including draft legal documents and White House communications, related to efforts by President Trump and his aides to overturn the results of the November election.
While the department has offered no public explanation for why it has continued the previous administration’s capacious exposition of presidential power elsewhere but curtailed it here, available explanations are highly relevant to a January 6th investigation. First, executive privilege cannot be asserted to shield evidence of wrongdoing, and the wrongdoing here was undeniable. And second, while the Justice Department’s view of presidential prerogative is extraordinarily broad, surely it does not extend to efforts to overturn an election. Perhaps, then, the Justice Department is open to the argument that its extreme position cannot be taken so far as to shield from Congress and the public evidence related to Trump’s fomenting of a violent mob to stop certification of an opponent’s election victory. This would be good news, signaling a necessary, if limited, degree of forthcoming cooperation.
But Congress should not count on it. As the House formulates its next steps, it should ensure that any investigative committee is equipped with effective subpoena compliance and enforcement tools. The threat of levying fines or criminally prosecuting violations would go far in incentivizing compliance and avoiding confrontation altogether. When costs for noncompliance are concrete and the threats of consequence are credible, disputes are more likely to be settled satisfactorily between the two branches through negotiation and compromise. Absent strong incentives to cooperate, any investigation will rest on polite requests. The recent Senate report should make clear just how well that approach will work.