Opinion: Trump loyalists can’t hide this truth
Norman Eisen is the executive chair of the States United Democracy Center. He served as former President Barack Obama’s ethics czar and ambassador to the Czech Republic, and was special impeachment counsel to the House Judiciary Committee in 2019-2020. He is a senior fellow at the Brookings Institution. Hank Sparks is a project assistant at the States United Democracy Center specializing in democratic accountability. The opinions expressed here are their own. View more opinion on CNN.
(CNN)Will the House select committee investigating the January 6 insurrection succeed in uncovering the truth about that awful day?
The committee has issued subpoenas to several loyalists of the former President, and their deadlines for cooperating have arrived. Will they be able to block or delay Congressional oversight, the way Trump and his allies did for all four years of his presidency?
We don’t think so. With Trump out of office, we believe the committee will get the information it wants on the timetable it needs.
Under the committee’s first wave of four subpoenas, key Trump loyalists Dan Scavino, Steve Bannon, Mark Meadows and Kash Patel are due to produce documents on Thursday and their testimony is due no later than October 15.
Meadows, the former White House chief of staff, was a witness to, and deeply involved in, Trump’s machinations to attack the election results, including pushing the Department of Justice to investigate baseless conspiracy theories and fraud claims about the 2020 presidential election, according to documents obtained by CNN and reported on in June. A spokesperson for Meadows then said Trump’s former chief of staff would not be commenting on the matter.
Deputy Chief of Staff Scavino was a constant presence around Trump and a mouthpiece on social media on and around January 6, according to the select committee’s subpoena, citing Scavino’s Twitter account, as well as accounts detailed in the recent Bob Woodward-Robert Costa book, “Peril.”
Patel was Trump’s hand-picked man at the Pentagon and in constant communication with the White House that day, the select committee subpoena said, citing documents provided to the committee by the Department of Defense. Patel has acknowledged he’s received the committee’s subpoena and said he would “continue to tell the truth to the American people about the events of January 6th.”
And then there is Trump’s outside and longtime adviser, Bannon, who seemed to predict that violence might occur and told Trump to “kill this administration in the crib” before January 6, according to accounts in the Woodward-Costa book. CNN reported that Bannon, speaking on his “War Room” podcast last month, “confirmed that he had huddled with Trump to plot a way to fundamentally undermine the Biden presidency on January 6 and even sort of declare victory.”
It appears that the committee has been successful in its attempts to serve subpoenas to Bannon and Meadows.
The second wave of 11 subpoenas to people responsible for organizing the Women for America First rally on the Ellipse on January 6 will come due. Though not household names, the 11 are critically important for untangling the events of that day and Trump’s role in them.
Those subpoena includes the former Trump campaign aide Katrina Pierson, who, the subpoena says (based on news reports), helped organize the rally and met with Trump in the Oval Office just two days before the insurrection. The subpoena targets also include Caroline Wren, who received tens of thousands of dollars as a consultant for the Trump campaign and Republican National Committee’s joint fundraising committee, according to the Center for Responsive Politics’ OpenSecrets site. Her title at the rally? “VIP adviser.”
Another integral event organizer subpoenaed is Megan Powers. She was on the rally paperwork as “Operations Manager for Schedule and Guidance,” according to the select committee subpoena. She was also the Trump campaign’s director of operations and was compensated about $300,000, said OpenSecrets.
This second wave of people subpoenaed must produce documents by October 13 and appear by late October or early November. This is an aggressive set of deadlines. Every two years there is a risk that the House will change hands. The committee knows it cannot waste any time as the window for accountability closes.
Good thing the committee moved fast, and is preparing for the possibility that some of Trump’s allies will resist the subpoenas. CNN has reported that the committee has been unable to physically serve Scavino with the subpoena.
The Trump allies are potentially eying the Congressional clock and contemplating running it out until January 2023 when a new Congress of unknown majority takes office.
The four are Trump loyalists par excellence, and so it is entirely possible that they will resist.
Given all of that, why do we think this committee will succeed where others failed?
First, because, as painful as those drawn-out battles of the Trump years were, they established precedents that can now be acted upon. It took years, but in Trump v. Mazars, the Supreme Court reinforced that the House has the power to secure “needed information” and clarified the legal context for obtaining presidential documents.
In Committee on the Judiciary v. McGahn, the DC Circuit ruled that the House may subpoena witnesses to appear and give testimony. Because these two cases have already resolved many critical legal questions, any litigation could move much more quickly than those cases did.
Second, any decisions about whether documents or testimony are protected by executive privilege are no longer the purview of Donald Trump. The most important precedent, Nixon v. Administrator of General Services, noted that “the privilege is not for the benefit of the President as an individual, but for the benefit of the Republic.”
Decisions on behalf of the republic are now made by the Biden administration. It has signaled where it stands by declining to assert executive privilege for former Trump Department of Justice officials Jeffrey Rosen and Richard Donoghue and permitting them to testify to Congress about Trump’s assault on the 2020 election that invited the insurrection. The administration will very likely continue this course of conduct going forward.
Third, this is not your father’s Justice Department. It is likely to wield the most powerful tool to compel enforcement of subpoenas: criminal contempt, prosecuting noncompliance with the threat of jail time and hefty fines. Bill Barr would not prosecute subpoena scofflaws (and was himself held in contempt by the House for refusal to comply with a subpoena).
As demonstrated already by DOJ’s assent to Rosen and Donoghue’s testifying, Merrick Garland is unlikely to follow Barr’s example.
Knowing that those penalties may loom may change the calculus for these four individuals, whatever Trump may say.
Fourth, some in the House are reportedly musing about the use of another tool that is even more expedited: Congress’s power of inherent contempt. It has been long established that Congress itself can sanction contemptuous witnesses, by, for example, levying crippling fines. While the power has not been used in over a century, it should be considered and might be deployed if the behavior of subpoena recipients is outrageous enough.
Still, what if those under subpoena or Trump himself decide to test all of this by individually or collectively going to court to block the subpoenas? The courts have the ability to move quickly if this ends up there, and the committee, press and public should push for speed. In Watergate, it was mere months between the subpoena for the White House tapes and the tapes being made available.
Less than four months after Special Prosecutor Leon Jaworski sought a subpoena for White House tapes, the trial, appellate and Supreme Court had ruled and United States v. Nixon had been decided, ordering Nixon to comply.
Congress and the public must do everything in their power to support the courts’ moving quickly. It is the duty of these judges to our Constitution, laws and democracy itself to allow us to get to the truth of January 6 and to brush aside specious executive privilege claims.
We not only need accountability, we need to learn from the insurrection to prevent and deter a recurrence. This means Congress giving no quarter if there is litigation and seeking none. For example, the usual practice of Trump and his coterie asking for extensions on many or every filing, motion or hearing should be rejected out of hand.
What about the fact that there have been challenges in serving at least one of the initial recipients, Dan Scavino? Subpoena recipients can run but they cannot hide — they can’t dodge service indefinitely. That was most recently proven in the case of Rep. Mo Brooks. He apparently tried to evade service in a January 6 civil case but was eventually served. The same will happen here.
All of the foregoing matters not just for Trump’s congressional reckoning, but also for his criminal one. Serious federal criminal violations are potentially implicated here for Trump. While there is no sign the Department of Justice is actually looking at him so far, depending on what the select committee unearths, the committee can make referrals to the Department of Justice to take action.
More immediately, and more promising for accountability, congressional conversations have begun with Georgia prosecutors about information sharing. The Fulton County District Attorney is actively investigating state charges for Trump’s attacks on democracy, and he has real exposure there.
After the investigation began last spring, Trump’s former aide Jason Miller said in a statement: “This is simply the Democrats’ latest attempt to score political points by continuing their witch hunt against President Trump, and everybody sees through it.” But the DA is pressing forward.
Indeed, Trump deepened the risk he faces with his admissions during his recent return to Georgia. The DA’s cooperation with Congress could produce indictments as soon as next year, not after the committee finishes its work, makes referrals and waits for this very cautious DOJ to investigate and decide.
For all those reasons, we believe Congress will get what it wants when it wants it, and that could mean consequences, even criminal ones, for Trump. It’s about time.