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Jan. 6 panel’s contempt charges reignite partisan infighting

To paraphrase an old trial lawyers’ adage: If the facts are against you, argue the law. If the law is against you, argue the facts. If they’re both against you, pound on the table. All three approaches were in play on both sides of the aisle April 6 when the House debated whether to find two former Trump administration officials in contempt of Congress for refusing to honor subpoenas issued by the Select Committee to Investigate the January 6 Attack on the U.S. Capitol. Additionally, Republicans employed a fourth tactic not available to lawyers in a courtroom –changing the subject. 

The select committee was created in June 2021 after a House-passed measure creating a bipartisan citizens’ commission to investigate the Capitol riot was blocked in the Senate. As a fallback, Speaker Nancy Pelosi (D-Calif.) introduced a resolution creating a select committee to conduct the inquiry to be comprised of 13 members appointed by the Speaker –five members from the minority after consultation with the Republican leader, Rep. Kevin McCarthy (Calif.).  The Speaker vetoed two of the GOP picks, Reps. Jim Banks (Ind.) and Jim Jordan (Ohio), as being too partisan. With that, McCarthy withdrew his other three nominees. Pelosi then appointed a nine-member panel of seven Democrats and two Republicans, Reps. Liz Cheney (Wyo.) and Adam Kinzinger (Ill.).   

The unprecedented action by the Speaker set-off a firestorm in Republican ranks. It reignited on April 6 with the latest contempt citations. Two other former aides to President Trump, Steve Bannon and chief of staff Mark Meadows, earlier defied subpoenas and were cited for criminal contempt of Congress. While the Justice Department moved promptly to indict Bannon, who was not a White House employee at the time of the Capitol attack, it has yet to move on Meadows.  Although the applicable law (2 USC secs. 192 & 194) says the U.S. Attorney has a “duty” to seek an indictment from a grand jury on such contempt cases, historically the department has asserted prosecutorial discretion, very rarely indicting executive branch officials for contempt of Congress. Prior to Bannon the last such indictments were in 1983 of an EPA official, and 1974 of two Watergate scandal figures.  

The first debate April 6 on the contempt issue was on a special rule from the Rules Committee providing for consideration of the select committee’s report and an accompanying resolution citing former communications deputy Dan Scavino and trade advisor Peter Navarro for contempt. The rule (H. Res. 1023) provided for one-hour of equally divided between Select Committee Chair Bennie Thompson (D-Miss.), Vice Chair Cheney, and a member opposed. 

Managing the special rule for the Rules Committee were two seasoned lawyers, Rep. Jamie Raskin (D-Md.), a former constitutional law professor, and Rep. Guy Reschenthaler (R-Pa.), a former Navy JAG lawyer and local magistrate. Raskin, who is also a member of the January 6 select committee, focused initially on the facts of the contempt case, namely that both former officials repeatedly refused to comply with numerous subpoenas to appear and provide all documents relating to the Jan. 6 breach of the Capitol complex. 

Reschenthaler initially argued the law, citing several Supreme Court decisions to argue the select committee was not legitimate: it was not properly constituted under the terms of its founding resolution (H. Res. 503), did not have a clearly defined legislative purpose, and that the two officials were protected by executive privilege that Trump had invoked on their behalf.   

Raskin responded that the select committee had received no such waiver from the former president and moreover that even if he had done so, the officials would still have to appear before the committee to assert the privilege. Moreover, Raskin pointed out that executive privilege only applies to communications with the president relating to official duties and does not apply to unrelated political moves to overturn an election’s results.   

The table pounding took the form of pots and kettles clanging at each other across the aisle in a cacophony of name-calling: partisan showmanship, hypocrisy, personal vilification and election-year point-scoring.   

The change of subject occurred when Rep. Reschenthaler raised the issue of immigration and the president’s intention to lift the Title 42 prohibition on persons from entering the U.S. from countries affected by the Covid virus.  He began recognizing, one-by-one, a large group of his Republican colleagues lined-up in the aisle (69 in all), each asking unanimous consent to immediately consider an unrelated bill, H.R. 471, “the PAUSE Act to protect all Americans from Biden’s border crisis.”  Raskin made clear that he had only yielded time to Reschenthaler “for the purposes of debate,” and that the unanimous consent requests were therefore not in order.  Still, each request had to be ruled out of order by the Speaker –a process that took over 20-minutes.  

When it was Raskin’s turn to speak again, he termed the GOP maneuver a “conga line,” a stunt, gimmick, extraneous and irrelevant, and “a waste of taxpayers’ money.”  Nevertheless, Reschenthaler indicated he would oppose the previous question on the rule in order to make in order the immediate consideration of H.R. 471, barring administration officials from implementing the President’s border order to lift the Title 42 immigrant ban.   

At the end of the hour’s debate on the rule, the minority’s previous question effort failed on a near party-line vote and the rule was subsequently adopted by a similar vote. The House went on to debate the contempt resolution for another hour. It too was adopted along near party lines with Reps. Cheney and Kinzinger the only Republicans in support.  

The elephant in the room largely ignored on April 6 was the fact that criminal contempt of Congress citations are rarely prosecuted by the Department of Justice against executive branch officials –as previously mentioned, prior to Bannon, only two in 1974 and one in 1983. Moreover, a criminal contempt conviction does not yield-up the subpoenaed information. It is purely punitive in nature.   

That may explain why, late last Friday, the select committee applied to the U.S. District Court in D.C. for summary judgment to dismiss Mark Meadows’ suit against the House. If granted, the dismissal would strengthen the select committee’s hand in compelling Meadows to comply with the subpoena for testimony and documents. It does make one wonder why the select committee did not employ a civil contempt approach in the first place to actually obtain the desired information directly through the courts without Justice Department involvement.   

Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own.    

Tags contempt of congress Donald Trump Guy Reschenthaler Jamie Raskin Jan. 6 House committee Kevin McCarthy Nancy Pelosi Steve Bannon

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