Trump tells witnesses to resist January 6 committee's subpoenas

Brandon Bell/Pool via AP

This is straightforward. Either the committee is prepared to enforce these subpoenas to the hilt, up to and including sending the resisters to federal prison for contempt if they refuse to testify, or it should disband. There’s no point in continuing its work if it’s willing to be ignored by reluctant witnesses.

In fact, if it’s prepared to be defied without consequences, Congress should never purport to investigate a presidential action again. The precedent will have been set that the legislature is no longer a check on the executive.

Or rather, the precedent will be cemented. It’s already clear in a hundred different ways that Congress is a quavering blob that prefers to let the imperial presidency do what it likes without interference.

The January 6 committee appeared to be a notable exception but whether it is or not will depend on how it responds to this.

The committee has subpoenaed documents and testimony from four Trump administration alumni: former social media czar Dan Scavino, former Defense Department official Kash Patel, former chief of staff Mark Meadows, and former White House adviser Steve Bannon. The four men were ordered to turn over documents related to Jan. 6 by Thursday and to sit for interviews with investigators next week.

But Trump is saying otherwise. In a letter that POLITICO viewed, a Trump lawyer tells them not to cooperate with the probe.

The letter stated the committee is seeking materials that are covered by executive privilege, as well as other privileges.

“President Trump is prepared to defend these fundamental privileges in court,” the letter said.

Meadows, Scavino, and Patel all worked for Trump’s administration on January 6 so there’s at least a prime facie case that their communications with him (and with others on his behalf?) are privileged. But I’m dying to hear the argument that Bannon, a podcaster who had left the government years before, is covered by executive privilege too. Is Trump under the impression that all of his conversations with everyone while he was president were privileged? Or is this just a mafia-boss “omerta” instinct that you don’t rat no matter what the law says?

Politically, it’s Trump 101. The important thing is to impress your fans by “fighting,” whether you’re in the right or wrong, and then to whine like a baby about unfairness and things being rigged against you if you lose. And Trump probably will lose in this case for the simple reason that assertions of executive privilege typically belong to the current president, not the former one. There’s an argument that ex-presidents should be able to assert privilege too so that their advisors can speak candidly to them while in office without fear that a future administration led by the other party might disclose their communications to damage them politically. But Biden already has an incentive to shield some of Trump’s communications on that ground. The Politico piece quoted above notes that any administration would be leery of letting a chief of staff’s advice to the president be disclosed given how sensitive it is. So maybe Biden’s White House will try to shield Meadows, if only to spare Ron Klain from the same treatment eventually.

But shield Bannon? Please.

Bennie Thompson, the head of the committee, has already said that they’ll “probably” refer any noncooperative witnesses to the Justice Department for potential criminal charges, which could mean a year in prison and a fine of up to $100,000. I think he’s serious too per the fact that the committee didn’t bother asking the four witnesses to cooperate voluntarily. They knew that all four would feel tremendous political pressure from the right to resist and that Trump would try to assert executive privilege to silence them so they cut to the chase with subpoenas right out of the box. That’s their way of showing they mean business. Next comes the court fight.

They issued three more subpoenas today which are more controversial than the previous four because they involve the organizers of the rally that preceded the riot at the Capitol:

The subpoenas seek deposition testimony from Ali Abdul Akbar, also known as Ali Alexander, and Nathan Martin, who were involved in organizing the “Stop the Steal” rallies that before the riot spread the lie that there was widespread fraud in the 2020 election. The committee also issued a subpoena for Stop the Steal L.L.C., an organization affiliated with the event…

In the weeks before the attack, Mr. Alexander made repeated reference during “Stop the Steal” events to the possible use of violence to achieve the organization’s goals, and he claimed to have been in communication with the White House and members of Congress regarding events planned to undermine the certification of the 2020 Electoral College results, the committee said.

The Project on Government Oversight sent a letter to the committee on Tuesday reminding them that rallies are protected speech under the First Amendment. Calling witnesses for no better reason than that their political views are obnoxious would smack of HUAC in the 1950s. You’re entitled to believe that the election was stolen so long as you behave peaceably. The wrinkle with Alexander is that it’s not clear that his intentions were peaceful:

Hundreds of crimes were committed at the Capitol by the people who attended his rally. What’s more, Alexander has said on video that he “schemed up” the rally with three members of Congress — Paul Gosar, Andy Biggs, and Mo Brooks — to “put maximum pressure on Congress while they were voting.” Was violence always quietly part of the “scheme” or did Alexander really mean to do nothing more than demonstrate? Seems like a question worth asking knowing that the crowd who showed up to his event ended up in the halls of Congress a few hours later looking to hang the vice president.