Over the past weeks, the House select committee investigating the Jan. 6 attack on the Capitol has called the bluff of three recalcitrant, Trump-related witnesses with knowledge of that day’s events. 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 is being prosecuted. On Nov. 30, Mark MeadowsMark MeadowsLaura Ingraham 'not saying' if she'd support Trump in 2024 Tucker Carlson extends influence on GOP Jan. 6 panel asks McCarthy to cooperate MORE and former Trump acting assistant attorney general Jeffrey Bossert Clark folded, though in different ways.
Congress is playing a strong hand well, but there is a larger point here. The select committee is showing us a vital aspect of how our constitutional system and the rule of law are meant to function.
On Dec. 1, the House select committee voted to hold Clark in contempt for failing to answer substantive questions last month on a frivolous claim of executive privilege. The night before, in an apparent eleventh-hour attempt to cure Clark’s defiance, his lawyer sent a letter informing the committee that his client would reappear and assert his Fifth Amendment rights. The committee held Clark in contempt and quickly scheduled his new appearance for Dec. 5.
These events followed immediately on the heels of former Trump chief of staff Meadows, under a similar threat of contempt, reversing his earlier decision not to appear before the committee. Meadows changed course after 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’s Justice Department indicted Bannon on Nov. 12, following a House referral for criminal contempt.
As for Clark, he could have invoked his Fifth Amendment right to silence last month at his first committee appearance instead of executive privilege, a claim his lawyer’s new letter tacitly admits could not withstand a Justice Department referral for criminal contempt. Clark’s latest legal move could also be game-playing to avoid testifying. Or it could be serious, with his original claim of executive privilege a ruse to test whether he could avoid testifying without “taking the Fifth” and implying his own criminality.
When asserted properly and not as a false cover for silence, the Fifth Amendment is a precious right that compels the government to produce its own evidence of crime, and not require individuals to provide evidence against themselves.
Still, one could excuse the committee for thinking that it might be on the right track in seeking Clark’s testimony about his role working with Trump in the run-up to Jan. 6. Trump himself said in 2017, “If you're innocent, why are you taking the Fifth Amendment?”
Clark invoking his right to remain silent does not leave the committee without means to move forward with Clark. In consultation with the Justice Department, the committee could conceivably immunize him, thereby compelling his testimony without risk of his words being used against him in a prosecution. There are reasons to consider doing so.
According to an Oct. 7 Senate judiciary committee report and news reports, in December 2020, Clark met with Trump without first telling Acting Attorney General Jeffrey Rosen, Clark’s immediate boss. Afterwards, Clark drafted a letter that sought to enlist Rosen to help Trump undermine 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’s election victory. The letter falsely stated that the Justice Department was investigating substantial claims of voter fraud. It proposed that Georgia and other states convene their legislatures to consider deselecting Electoral College delegates pledged to Biden.
Rosen refused to sign the letter, and Trump was about to replace him with Clark so the scheme could proceed — until the entire Justice Department leadership threatened to resign if he did. Obtaining Clark’s testimony about what happened behind the scenes may well be worth giving up one prosecution to “catch a bigger fish.”
Stepping back from next steps for Clark, let’s take note of something historic that’s happened over the past weeks. The select committee has moved forcefully to gather evidence in pursuit of its investigations, including from defiant witnesses.
Lest we think that unremarkable, it was only a short time ago that William BarrBill BarrWilliam Barr's memoir set for release in early March The enemy within: Now every day is Jan. 6 Dems worry they'll be boxed out without changes to filibuster, voting rules MORE was attorney general. He declined to prosecute Commerce Secretary Wilbur RossWilbur Louis RossMomentum builds to prohibit lawmakers from trading stocks Census memo notes 'unprecedented' Trump administration meddling: report Holding defiant Trump witnesses to account, Jan. 6 committee carries out Congress's constitutional role MORE after Congress cited him for criminal contempt for not producing subpoenaed documents in its investigation of his attempt to add a citizenship question to the census. The Justice Department declined to prosecute Barr himself when Congress cited him for contempt for failing to produce an unredacted copy of the Mueller Report.
In that environment, officials resisting subpoenas were rampant. Treasury Secretary Stephen Mnuchin refused to give Congress Trump’s tax returns. White House Counsel Don McGahn would not testify about Trump’s alleged obstruction of the Russia investigation, a refusal resolved by negotiation after Biden became president.
Things have changed. With support from DOJ, the select committee has demonstrated that its orders have teeth and can bite. Congress has shown that it will enforce its subpoenas to fulfill its oversight responsibilities. Together, the executive and legislative branches have revived our system of checks and balances.
That is how the Constitution is meant to work.
Dennis Aftergut is a former federal prosecutor.