Don’t Let Trumpism Shatter Your Faith in the Rule of Law.

Photo Courtesy of Al-Jazeera

As word got out that Steve Bannon and others subpoenaed to testify by the January 6 Select Committee intended to defy Congress, but that the Committee was prepared to move to enforce the subpoenas through criminal prosecutions, it became common to dismiss the idea that they would ever be held to account. “Don’t hold your breath.” “Nothing’s going to happen.” “Rich white guys get away with what ordinary citizens never would.”

The Trump years have conditioned many Americans to expect that people like him and his cronies are indeed made of Teflon. They thumbed their noses for years at Congressional subpoenas, and the courts took forever to decide anything. Now here we are again, with Bannon openly daring Congress to come after him. Isn’t the same thing going to happen? Aren’t we just going to grow frustrated and further disillusioned?

Trump and his enablers in the GOP certainly hope so. Before we cave to their cynicism and throw up our hands in surrender, we need to understand what happened before with those Congressional subpoenas—what broke in our system—and how we can avoid those traps, delays and outcomes today.

Criminal versus Civil Contempt

To best understand the difference between then and now, we need to explore how Congress can actually enforce a subpoena. The fastest way is to move for criminal contempt. In this process, as discussed by Rep. Adam Schiff on MSNBC yesterday, the Committee would draft a quick report of its efforts to obtain the witnesses’ compliance then ask the Speaker for a full House vote to refer the matter to the Justice Department. From there, the attorney general would, they hope, prosecute the no-shows criminally for contempt.

It was this last process that broke during the Trump years. So long as Bill Barr was the attorney general, the Justice Department had zero interest in going after the nose-thumbers. This highlights how dangerous a non-independent or even complicit Department is to the proper functioning of our system, particularly where there are disputes between co-equal branches of our government, one of which actually controls the Department.

With criminal proceedings out of the picture, a Civil Contempt process was all that remained for the Democrats during the Trump years. That meant filing with a court to force witnesses to comply. But cases were backed up, particularly during the pandemic. And even if they could obtain an order from a federal district court, the White House could appeal it all the way up to the Supreme Court. That meant years of delay, right out the gate. Democrats did their best with the courts as they were, and they even got their way in the end in many cases—just years too late.

Why Not Send the Sergeant-at-Arms to Arrest Bannon?

Once upon a time, Congress used its “inherent contempt” powers to send its sergeant-at-arms to arrest a witness who refused to comply with a subpoena. But that hasn’t happened for almost a century. In 1927, the Supreme Court said the Senate acted lawfully in sending its deputy sergeant-at-arms to arrest and detain the brother of the then-attorney general, who had refused to testify about a bribery scheme. In modern times, however, and under normal circumstances, witnesses wind up testifying after working things out with Congress. 

But the 1927 case was decided when Congress was more protective of its own authority and power, without being half-captive to Trump’s cult of personality. Congress today stands in low esteem with the public, so a witness refusing to comply with an arrest warrant issued by Congress, one who actively is resisting the efforts of its lonely sergeant-at-arms to arrest him, would likely become a martyr in the eyes of the Republican base.

Moreover, if Congress went down this route, it might take pressure off of the Justice Department to get involved, something it is traditionally hesitant to do when the matter involves a political dispute with another branch of government. The Department has already lost the trust of much of the public because of Bill Barr; Attorney General Merrick Garland at least has to be mindful that he not be viewed as a political tool of the Democrats—or the cycle of politicization begun by Trump will continue and ultimately could erase all legitimacy and independence of the Executive branch’s law enforcement arm.

Why Haven’t They Already Acted?

“Stop talking and start arresting.” That was a common response to news that the Committee intended to enforce its subpoenas through criminal prosecution. “I’m tired of hearing what they will do, I want them to do something now.” This frustration is understandable, but there is a bright legal line for when action can be undertaken to enforce a subpoena: The witnesses must actually be in defiance of it by not showing up as of the scheduled date.

Steve Bannon isn’t scheduled to appear until later today. That means the soonest the Committee could even prepare a report to submit to Congress is hours later or on Friday, and the soonest the House could act is likely next week. This is going to make a lot of people unhappy over the weekend when nothing apparently is happening and an arrest didn’t immediately ensue, but it simply isn’t realistic or possible to expect this to move any faster, as there is a legal process that must be followed.

What Does It Matter, They’ll Only Plead the Fifth!

It is highly likely that witnesses like Steve Bannon and Jeffrey Clark (the Department official who authored the infamous draft letter to the Georgia Legislature that would have upended the results of the election there) will refuse to testify even if they are forced to appear. We should be mentally prepared for that. While the Committee is tasked with investigating and discovering the truth and high-level witnesses taking the Fifth could derail that somewhat, it also could cause a major political shift, especially among voters who are currently less informed or interested in what transpired. Pleading the Fifth is a kind of smoke to a blazing criminal fire, and it could set in motion some deal-making with the Justice Department or the Committee: testimony against the former president and his cohorts in exchange for some kind of immunity.

For these reasons, the Committee is no doubt already prepared for certain witnesses to plead the Fifth Amendment and to maximize their leverage if and when that should occur.

We Need to Stop Helping the Republicans Discredit the Process

The political backdrop to the Committee’s work includes overt attempts by the GOP to squash the issue and the investigation. These bear repeating because we need to keep in mind that the Committee is operating under hostile enemy political fire.

First, the GOP attempted to put insurrection sympathizers and even actual material witnesses like Rep. Jim Jordan onto the very panel that would be conducting the investigation. 

Second, after two of these obvious trolls were rejected by Speaker Pelosi, the Senate GOP, at the instruction of Mitch McConnell, filibustered the bill and blocked the formation of a bipartisan committee, shocking even “centrists” like Sen. Joe Manchin.

Third, the GOP has leaned in hard to rewrite history and recast the insurrection as non-violent and the participants as patriots. They have similarly cast aspersions on and openly mocked the Capitol Police who testified.

Finally, when third-party subpoenas were issued for electronic email and cell phone records, Minority Leader Kevin McCarthy openly threatened any companies who complied with the data requests, promising political retribution if they cooperated.

I lay these out so that we can keep in mind the unprecedented circumstances under which the Committee is working. On top of the above, the conservatives on the Committee such as Liz Cheney and Adam Kinzinger are pariahs within their own party. People with no legal claim to any privilege such as Steve Bannon, who wasn’t even a member of the administration during the relevant election months, are taunting the Committee with the full support of a former president who still controls his party and intends to run again.

Will Justice prevail? Will the witnesses be forced to comply? That is the hope of everyone, Democrat or Republican, who still believes in the rule of law. And that is what we are truly fighting over: the ability of our system to hold everyone to account, irrespective of power or station. But when we assume that the system will fail, when we lose faith in the very people on the Committee and in the Justice Department who must save us from this outcome, then in a sense Trump already has won. We will have given up on our core beliefs and have stopped fighting for them, and he can walk back into the White House with that wind at his back.

Here’s some early good news, though. The White House isn’t prepared to allow concerns over precedent to prevent justice from proceeding. And this is an important point: The recent waiver by the White House of its Executive Privilege over the communications between Trump and his advisors is no small matter, even if it seems like an obvious move to laypersons. It was a tough choice for Biden because that door, once opened, is hard to close. His own advisors must now wonder whether future Republican presidents will waive the privilege and force disclosure of all their communications with Joe Biden, perhaps turning them over to a hostile Congress. That could cause many in the administration to withhold or temper their most honest and frank opinions out of fear they will be discovered and made public one day.

But the White House apparently has decided that the threat to our democracy outweighs the potential loss of advisory candor. That gives me hope that Attorney General Merrick Garland will also press for this same truth and enforce the subpoenas through criminal prosecution, despite the risk that his Department might thereafter be viewed by a third of Americans as nothing but a tool of the Democrats. Criminal prosecutions against the nose-thumbers are not yet a given, but they are more likely than not at this point if only to preserve the even higher value principle that no one, not even the former president or his advisors, should be considered above the law.