As the anniversary of the Jan. 6 insurrection approaches, we should all bemoan the fact that those who tried to steal the 2020 election from the American people have yet to be held to account. The public must continue to demand consequences for those who participated in an insurrection against the U.S. Constitution—and not just those who stormed the Capitol Building, attacked those sworn to protect it, and obstructed Congress’s acceptance of the presidential election results. There must be accountability for those who sought to undermine the U.S. government by falsely claiming that the election was rigged, giving life to those lies in various legal and legislative acts of insurrection, engendering violence against Congress, and (temporarily) halting its certification of the 2020 presidential election results.
Ambassador P. Michael McKinley (ret.) recently published a piece in Just Security that drove home the need for accountability for former President Donald Trump and others who have imperiled our democracy. I agree with Ambassador McKinley’s sense of urgency and his call for the Department of Justice to ensure that the foot soldiers of the insurrection are not the only individuals who face real consequences. But it is also important to recognize that, within the existing constraints, the January 6 Select Committee’s investigation has made meaningful and timely progress towards accountability.
Real accountability is not possible without proven (and provable) facts. Congress and federal prosecutors cannot make a case for criminal liability without being able to articulate the evidence of culpability. Congress cannot make a case that someone is barred from holding public office under section 3 of the 14th Amendment without articulating how they engaged in an insurrection against the Constitution. Those pursuing lawsuits against the insurrectionists need facts to vindicate their claims that the defendants violated their civil rights.
The Select Committee has been engaged in the deliberate and largely quiet work of amassing facts that will serve all of these ends and more. As Select Committee Chairman Bennie Thompson recently noted, the Select Committee will have interviewed or deposed over 300 witnesses and obtained over 30,000 records by the end of 2021. That is, frankly, an astounding pace. It strongly suggests that the Select Committee members and staff have internalized the urgency of this moment and their role in it.
The vast majority of witnesses identified by the Select Committee have cooperated without the Select Committee even needing to issue a formal subpoena. And the Select Committee has taken appropriate and decisive steps to compel testimony when required; it has issued 52 subpoenas for records and testimony in the last several months:
- Four to individuals tied to the former President (former White House Chief of Staff, Mark Meadows; former White House Chief of Staff Daniel Scavino; former chief of staff to the Acting United States Secretary of Defense Kashyap Patel; and Stephen Bannon);
- Eleven to individuals allegedly tied to the events and rallies leading up to the Jan. 6 insurrection, including the Jan. 6, 2021 rally on the Ellipse, rallies at Freedom Plaza on Nov. 4 and Dec. 12, 2020, and two “March for Trump” nationwide bus tours;
- Three to individuals and an organization associated with the “Stop the Steal” rally that took place on the grounds of the United States Capitol on Jan. 6;
- One to former DOJ official Jeffrey Clark, allegedly at the center of efforts within DOJ to help former President Trump steal the 2020 election;
- Six to individuals allegedly involved in efforts to promote false claims of election fraud or overturn the results of the 2020 election;
- Ten to former administration officials who served in the White House or DOJ at the time of the Jan. 6 attack;
- Five to individuals who allegedly helped or had knowledge of the planning and financing of the Jan. 5 and 6 rallies in Washington D.C. and the subsequent march and violent attack on the U.S. Capitol;
- Five to groups or individuals allegedly involved in or with knowledge of violence leading up to and on Jan. 6;
- Six to individuals allegedly involved in the organization and planning of rallies on Jan. 5 and 6, including individuals who allegedly worked directly with the former President to plan the Jan. 6 Ellipse rally that directly preceded the attack on the U.S. Capitol; and
- One to James P. “Phil” Waldron, allegedly involved with efforts to promote claims about fraud in the 2020 election.
Again, many of those subpoenaed are turning over records and appearing for depositions. A noisy — and no doubt important — few have put up some resistance. Bannon refused to cooperate and, laughably, claimed that executive privilege precludes him from testifying even though he was a private citizen and was not advising President Trump about governmental affairs at the time of the events in question. Meadows turned over records but thus far has refused to testify on grounds that are slightly less ridiculous than Bannon but nevertheless unlikely to be any more successful. John Eastman, who helped Trump pressure Vice President Mike Pence to contest election results in several states, invoked his Fifth Amendment right against self-incrimination in response to the Select Committee’s subpoena. So too did Roger Stone, who promoted his appearance at rallies on Jan. 5 and Jan. 6 2021 and employed members of the Oath Keepers (an extremist group that participated in the violence during the insurrection) as his private security detail that day. News broke on Dec. 21 that the Select Committee can expect similar obstruction from Michael Flynn and John Eastman, two other allies of the former president who assisted in efforts to overturn the 2020 presidential election.
It’s a mistake to view these witnesses’ noncompliance as the end of the road, though. No witness — not even a former aide to the president — has absolute immunity from answering questions or producing documents; any claim of privilege must be raised and justified on a case-by-case basis. And the Select Committee is taking action against those who are asserting bogus privileges. It has reported Bannon for contempt, the full U.S. House referred the case to DOJ, and he was swiftly indicted for contempt of Congress. Meadows’s case was recently referred to DOJ by the House for prosecution, and there is every reason to think he will be indicted soon too. The pressure on both Bannon and Meadows will continue to mount. Assertions of the right against self-incrimination may be somewhat trickier to navigate; however, that right can be waived, it doesn’t necessarily absolve an individual of the obligation to produce records, and it can become unavailable to an individual if the Select Committee decides to grant them immunity. A witness who continues to refuse to testify once the Fifth Amendment privilege is no longer available can be held in contempt and referred to DOJ for prosecution.
Perhaps most critically, though, the Select Committee has other ways of obtaining the information that Bannon, Meadows, Eastman, and Stone want to hide. The Select Committee reportedly subpoenaed Verizon for the phone records of over 100 individuals, which will help the Select Committee construct a timeline of who contacted whom on Jan. 6 and in the days leading up to the insurrection. (The Select Committee has very likely subpoenaed other third-party carriers too.) Many cooperating witnesses are likely able to testify about the actions of non-cooperating witnesses or to turn over communications and other records. And, on top of all of that, the Select Committee has access to records from DOJ, Department of Defense, Department of Homeland Security, Department of the Interior, Federal Bureau of Investigation, National Counterterrorism Center, and Office of the Director of National Intelligence that have reportedly been turned over in response to requests that the Select Committee transmitted in August.
Last but not least, there is the matter of presidential records in the custody of the National Archives and Records Administration (NARA) that President Trump is trying to stop the Select Committee from obtaining; however, that case is proceeding expeditiously. The former president lost decisively in the district court on Nov. 9 and in the D.C. Circuit Court of Appeals on Dec. 9. The appellate court made a special note that judges should act with dispatch given how “the legislature is proceeding with urgency” in investigating a matter of such great public import.
While Congress can and should enact reforms to accelerate the disposition of cases relating to its investigative powers, this case could very well be resolved in the Select Committee’s favor very soon. Trump faces a Dec. 23 deadline to seek certiorari in the Supreme Court. If the Court declines to hear the case, which could happen in a matter of weeks, NARA may be in a position to provide presidential records to the Special Committee in early 2022. If the Supreme Court decides to hear Trump’s appeal, then the matter would likely still be resolved by the end of June 2022 — a tolerable if unnecessary delay given the speed at which the lower courts have acted and the emphatic manner in which they have ruled against Trump. (Disclosure: I helped draft an amicus brief supporting the Select Committee’s position in the D.C. Circuit.)
In sum, the Select Committee is in the process of fulfilling one of its essential functions: investigating what caused the insurrection on Jan. 6 who, exactly, was involved; and how, specifically, they participated in the most serious attack on our Constitution since the Civil War. That is not to say that by establishing those truths, the Select Committee will have delivered accountability that is sufficient to protect our democracy. Far from it. It is rather to say that the Select Committee is conducting a serious and thorough investigation that is a necessary precursor to more specific and concrete forms of accountability that saving our democracy will require.