This week the House of Representative select committee tasked with investigating the Jan. 6 attack on the Capitol issued a flurry of new subpoenas.
All eyes are on House Democrats, Attorney General Merrick GarlandMerrick GarlandMellman: Voting rights or the filibuster? A new Bureau of Prisons director gives administration a chance to live up to promises Lawmakers coming under increased threats — sometimes from one another MORE and the federal courts to see if, collectively, the three branches of government can get to the bottom of former President TrumpDonald TrumpKinzinger welcomes baby boy Tennessee lawmaker presents self-defense bill in 'honor' of Kyle Rittenhouse Five things to know about the New York AG's pursuit of Trump MORE’s knowledge and involvement in the planning of the bloody insurrection in the coming months.
And the clock is ticking.
As of Tuesday, America is one year away from the congressional midterms, in which Republicans are pretty likely poised to take over both houses of Congress. If that happens in the House, the vital work of the Select Committee will screech to a halt, which would be a travesty of epic proportions.
Individuals subpoenaed this week included lawyer John Eastman, who penned a shocking memo outlining a plan to persuade former Vice President Mike PenceMichael (Mike) Richard PencePences' pet rabbit, Marlon Bundo, dies Pence says both Capitol riot and nixing filibuster are a 'power grab' McCarthy says he won't cooperate with 'illegitimate' Jan. 6 probe MORE — in his role as president of the Senate — to refuse to count the Electoral College certifications of seven states.
The committee also subpoenaed former NYC police commissioner Bernard Kerik, once a bodyguard for Rudy GiulianiRudy GiulianiThe Hill's Morning Report - Presented by Facebook - Schumer tees up doomed election reform vote Jan. 6 panel subpoenas phone records associated with Eric Trump, Kimberly Guilfoyle: report Jan. 6 panel subpoenas Rudy Giuliani, Sidney Powell MORE who rose through ranks and was lauded for his work on Sept. 11. Kerik also pled guilty in 2008 to federal tax fraud charges but was pardoned by Trump. Kerik reportedly paid for a suite of rooms at Washington, D.C.’s Willard Hotel used as a sort-of headquarters to plan a Jan. 6 Capitol takeover.
Trump campaign officials Bill StepienBill StepienBrad Parscale says Jan. 6 committee issued subpoena for his phone records Jan. 6 commission postpones Jason Miller deposition after he engages with committee Christie says Trump, Meadows should have warned him of positive COVID-19 test MORE, Jason Miller and Angela McCallum were also subpoenaed, along with former national security adviser Michael Flynn. Flynn notably participated in a December 2020 Oval Office meeting at which seizing voting machines and declaring a national emergency were discussed, and whom Trump also pardoned for lying to the FBI. Former White House press secretary Kayleigh McEnany and former Trump senior adviser Stephen MillerStephen MillerPennsylvania Republican David McCormick launches Senate campaign McEnany sits down with Jan. 6 investigators Legal aid groups want little to no part of re-upped Remain in Mexico program MORE also received subpoenas, among others.
It’s been nearly three weeks since Steve BannonSteve BannonSteve Bannon's Supreme Court? Biden's new calls to action matter, as does the one yet to come GOP's McCarthy has little incentive to work with Jan. 6 panel MORE, a former Trump adviser, was slapped with a congressional criminal contempt citation for not complying with a select committee subpoena on legally frivolous executive privilege grounds.
Former Trump Assistant Attorney General for the Civil Division, Jeffrey Clark, also refused to talk to Congress on Friday. Following the election, Clark reportedly proposed that the Department of Justice falsely allege that it was investigating voter fraud and call for Georgia to rescind its certification of Biden’s win in that state. When Acting Attorney General Jeffrey Rosen refused, Trump held a White House meeting at which he reportedly dangled the possibility of dislodging Rosen and installing Clark as the head of DOJ, despite Clark’s relative lack of experience.
Meanwhile, Garland is taking heat for sitting on the Bannon criminal contempt referral. In fairness, the decision is technically left to the U.S. Attorney for the District of Columbia, Matthew M. Graves, who was newly installed just five days ago. (So maybe handwringers can take a breath.)
There is no question that Garland, in good conscience, cannot — or should not — hold out indefinitely. What’s on the line is not just accountability for Jan. 6 planning. The questions of conspiracy to defraud the United States and obstruct Congress do loom large, not to mention the over 690 actual insurrectionists who have been charged for breaching the Capitol grounds (although there are no charges against anyone in the upper echelons of government). But also at stake is the constitutional viability and power of Congress as a coordinate branch of the federal government.
The precarious state of congressional power is not Garland’s fault. First and foremost, blame the Senate, which refused to convict Trump after the first impeachment trial on the charge of obstruction of Congress. While he was president, Trump thumbed his nose at any requests for information. Now that Trump is a private citizen, he continues to push the spurious argument that he totally controls the confidentiality of his White House records.
Last night, a federal judge in D.C. rejected Trump’s assertion of “executive privilege” to stop the National Archives and Record Administration (NARA) from disclosing records to the select committee. The judge ruled on the sound rationale that it’s the sitting president — Joe BidenJoe BidenBiden says he didn't 'overpromise' Finland PM pledges 'extremely tough' sanctions should Russia invade Ukraine Russia: Nothing less than NATO expansion ban is acceptable MORE — who legally possesses the final word on executive privilege, and he already greenlighted the disclosures.
Judicial rulings are one thing — but as a matter of politics, Democrats have been sheepish at standing up for congressional authority for years. Meanwhile, Republicans seem content to hand over independent discretion entirely to Trump, given his almost surreal hold on the electoral base.
Yet, as the district judge noted in this week’s NARA decision, “presidents are not kings, and Plaintiff [Trump] is not President.”
What happens between now and November 2022 will likely determine the fate of American democracy itself.
Kimberly Wehle is a professor at the University of Baltimore School of Law and author of “How to Read the Constitution — and Why,” as well as “What You Need to Know About Voting — and Why” and “How to Think Like a Lawyer – and Why” (forthcoming February 2022). Follow her on Twitter: @kimwehle
This piece has been updated.