The House select committee charged with investigating the Jan. 6 insurrection recently subpoenaed four of former President TrumpDonald TrumpFormer defense secretary Esper sues Pentagon in memoir dispute Biden celebrates start of Hanukkah Fauci says lies, threats are 'noise' MORE’s senior advisors — the first subpoenas issued by the committee.
Typically, congressional investigators start with a request for records or testimony, just as the select committee did with its records requests to various executive branch agencies and social media companies. If the receiving parties fail to accommodate the requests in good faith, investigators may resort to subpoenas.
That the Jan. 6 select committee moved “straight to subpoenas” suggests a clear-eyed assessment that Trump’s advisors will not voluntarily cooperate. Rather than waste time, the committee is opting to compel their compliance from the start.
But will it matter? What options does the committee have when witnesses refuse to comply?
Congressional subpoenas carry the force of law. As a matter of constitutional law, the Supreme Court has long held that the “congressional power to obtain information is ‘broad’ and ‘indispensable’” — and that Congress may self-enforce its demands for information through its inherent contempt power. For 140 years, it did so by deploying its sergeant-at-arms to arrest recalcitrant witnesses. As a matter of statutory law, Congress also long ago made contemnors criminally liable, deputizing U.S. Attorneys to prosecute those who obstruct its work. Congress can additionally seek help from the judiciary, asking judges to enforce subpoenas on its behalf.
Theoretically, at least, Congress can compel compliance, either on its own or with the aid of law enforcement or the courts. But only one of these options is currently feasible.
First, the select committee could invoke the House’s inherent contempt power in an attempt to enforce subpoenas on its own. But that power in practice has lain dormant for nearly a century; the last arrest was made in 1935. Lawmakers have proposed new enforcement methods to reanimate inherent contempt, such as levying fines in lieu of arrests. Select committee member Rep. Jamie RaskinJamin (Jamie) Ben RaskinTrump allies leaning on his executive privilege claims Oversight panel eyes excessive bail, jail overcrowding in New York City Jan. 6 panel may see leverage from Bannon prosecution MORE has proposed doing just that. But devising and authorizing a new enforcement tool in such short order seems impractical. Further, it is unclear whether the threat of monetary penalties would in fact be sufficient to incentivize compliance among wealthy witnesses.
Second, in recent years, committees have taken to filing civil suits, hoping the judiciary will intervene and force subpoenaed individuals to comply. While this approach has rarely — if ever — actually led to sufficient compliance, it is also not necessary. Congress has typically resorted to the courts in cases where the executive branch shields officials from congressional oversight. But Trump’s former advisors are now private citizens; and the Justice Department has clarified that they can provide “unrestricted testimony” to lawmakers investigating the insurrection.
Civil action won’t work here. The last time a congressional committee used litigation in order to compel a private entity to comply with a subpoena — an attempt by the Senate’s Permanent Subcommittee on Investigations to force Backpage.com to turn over documents in a human trafficking inquiry — the case meandered through the courts for 14 months, at which point it was rendered moot when the investigation ended. The select committee does not have 14 months to wait and waste.
This leaves criminal contempt, its third option, as the committee’s most practical. In 1857, Congress passed a statute making it a federal crime to refuse to testify or produce documents when directed to do so by either chamber. Contempt citations are referred to the U.S. Attorney’s Office for the District of Columbia, who is statutorily obligated to refer the violation to a grand jury. The law has historically served Congress well. While prosecutions are rare, available evidence suggests that the threat of criminal prosecution has long been effective at incentivizing cooperation.
Select Committee Chairman Bennie ThompsonBennie Gordon ThompsonJan. 6 panel faces double-edged sword with Alex Jones, Roger Stone Jan. 6 panel subpoenas Proud Boys, Oath Keepers and leaders Jan. 6 panel subpoenas Roger Stone, Alex Jones MORE (D-Miss.) recently indicated that this traditional enforcement option “is on the table” — a position echoed by select committee member Rep. Adam SchiffAdam Bennett SchiffSunday shows - Spotlight shifts to omicron variant Schiff: Jan. 6 panel decision on charges for Meadows could come this week GOP eyes booting Democrats from seats if House flips MORE. (D-Calif.). This is good news. The select committee should be just as pragmatic with the enforcement of its subpoenas as it has been with issuing them.
However, the successful use of criminal contempt is not up to the committee alone. The approach only works if the Justice Department enforces the law. In recent decades, the Department has used its prosecutorial discretion to avoid doing so. However, its declinations — grounded in separation of powers concerns — have been limited to cases involving current executive branch officials, not private citizens. Regardless, any separation of powers concerns tilt heavily in Congress’s favor: an investigation into what led to and how to prevent a violent assault on Congress and interference with its core duties.
The select committee’s inquiry is not comparable to routine congressional oversight. If under normal circumstances the DOJ is disinclined to prosecute a criminal contempt citation, the singular stakes of this investigation — a fact-finding and truth-telling prerequisite to preventing another attempted overthrow of the U.S. government — require that it do so here.
When the former president’s advisors (or, for that matter, any private parties) refuse to comply with duly issued subpoenas, which is a crime, it will be incumbent upon law enforcement to prevent their impunity.
Jan. 6 put on vivid display a world in which those with awesome power operate outside our constitutional order. The Justice Department must assure the congressional committee charged with investigating an assault on the rule of law that it has the backing of the rule of law. If the DOJ abdicates its responsibilities, or if the select committee itself shies away from prudent subpoena enforcement, those with little tolerance for democracy will be vindicated.
Anne Tindall is a counsel at Protect Democracy, a not-for-profit formed to prevent American democracy from declining into a more authoritarian form of government. Grant Tudor is a policy advocate at Protect Democracy.