By Jacqueline Alemany and Tom Hamburger,
The House select committee investigating the Jan. 6 attack on the Capitol is planning to ramp up its efforts to force Trump administration officials to comply with its subpoenas as the former president attempts to stymie the inquiry.
Lawmakers who sit on the panel said they are prepared to pursue criminal charges against witnesses like Stephen K. Bannon who have balked at cooperating. And the committee may issue a subpoena as early as Wednesday to Jeffrey Clark, a Trump Justice Department official who sought to deploy department resources to support former president Donald Trump’s false claims of massive voting fraud in the 2020 election.
“We are completely of one mind that if people refuse to respond to questions without justification that we will hold them in criminal contempt and refer them to the Justice Department,” Rep. Adam B. Schiff (D-Calif.), a member of the panel, said in an interview Tuesday.
Tensions over compliance with subpoenas are increasing as the committee’s plan to hold depositions this week with Bannon and three other Trump administration officials — former chief of staff Mark Meadows, former deputy chief of staff Dan Scavino and Kash Patel, who was serving as chief of staff to the acting defense secretary on Jan. 6 — is already facing head winds.
Although lawmakers maintain that the deposition dates still stand for this week, it remains unclear whether they will happen. But talks between the committee and the former officials’ lawyers continue.
Negotiations between Clark’s legal team and the committee did not proceed as rapidly as the committee hoped, according to a person familiar with the conversations who spoke on the condition of anonymity to discuss the sensitive talks. As a result, the committee is contemplating issuing a subpoena, this person said.
A committee spokesman declined to comment on any possible future subpoenas.
Clark is considered a key witness for the panel, which is looking into Trump administration efforts to overturn election results and interfere with the peaceful transfer of power.
Clark, the former acting head of the DOJ’s civil division, emerged as a key player in Trump’s push to amplify his voter-fraud claims after it was reported that the two men were in close touch in the days leading up to the Jan. 6 attack, which was the most serious attack on the Capitol since the War of 1812.
Clark authored and circulated a draft letter dated Dec. 28, addressed to Georgia Gov. Brian Kemp (R) that urged officials in the state to investigate unfounded claims of fraud. The Washington Post has previously reported that in early January, Trump entertained a plan to oust acting attorney general Jeffrey Rosen and replace him with Clark, who was open to pursuing Trump’s attempts to overturn the election results.
Trump has urged his former aides not to cooperate with the committee and is asserting a claim of executive privilege to prevent the release of records from the National Archives after the Biden administration last week said it will not stand in the way of the information’s release.
A lawyer for Bannon said Wednesday that the committee’s public statements about his client were not productive. Bannon has provided testimony to investigators in past cases where Trump waived executive privilege.
“Their press releases about Steve Bannon are just bluster,” said Robert Costello, Bannon’s lawyer. Costello said he has reached out to Trump attorney Justin Clark to ask for details of Trump’s position on invoking privilege, but he said Clark has not responded.
In a letter last week, Costello informed the panel that Bannon will adhere to the former president’s directive to not comply with the committee’s requests.
“We will comply with the directions of the courts, when and if they rule on these claims of both executive and attorney client privileges,” wrote Costello. “Since these privileges belong to President Trump and not Mr. Bannon, until these issues are resolved, Mr. Bannon is legally unable to comply with your subpoena requests for documents and testimony.”
Bannon was subpoenaed last month along with Meadows, Scavino and Patel. Of the four, Bannon is the only one who was not part of the administration on Jan. 6. He left his job as a top White House adviser to Trump in 2017. Several legal experts questioned whether executive privilege could shield Bannon from responding to requests for information about what happened during a period when he was not a White House employee.
It is not clear whether Meadows, Scavino or Patel will comply with either the committee’s requests for testimony or documents, which are due at the end of this week.
Meadows and Scavino did not respond to requests for comment. Patel said he continues to “engage” with the committee, but did not elaborate.
The committee previously confirmed that Patel and Meadows were “engaging” with investigators.
In the subpoenas sent last month, the committee said it expected Bannon and Patel to sit for interviews with the committee Thursday and Meadows and Scavino to do the same on Friday.
Democrat-led congressional inquiries into the Trump administration were often frustrated by legal battles over how much a sitting president and his aides had to comply with the inquiries due to issues of executive privilege and separation of powers.
But Schiff and others connected to the inquiry said they believe they now have a much better chance at forcing compliance with Trump out of office because they expect the Biden Justice Department will help them take action against people who do not cooperate with the inquiry.
“Unlike the last four years, we expect the Justice Department to adhere to the principle that no one is above the law,” Schiff said. “I’m very encouraged that the administration recognizes the imperative that the public learn the full facts of Jan. 6.”
To proceed with a criminal contempt charge, the full committee must meet, which might be unlikely this week but lawmakers will probably signal their intention to proceed to seek contempt charges, said a person familiar with the process.
In the past, congressional panels pressing for testimony have used civil contempt citations to leverage cooperation. After House approval, lawyers for the chamber can go to court seeking civil contempt penalties.
Criminal contempt charges require action by the Justice Department. During the Trump years, criminal prosecution was not seen as a practical way to proceed because the Justice Department then was considered unlikely to accept the criminal case.
With a new attorney general, Merrick Garland, in charge, things have changed. The department has indicated its interest in pursuing the Jan. 6 inquiry and cooperating with investigators. Details of Clark’s dealings with Trump were uncovered thanks to cooperation from the department, which helped pave the way for some former top Trump Department officials to testify.
Schiff noted that the Garland Justice Department has allowed “us to interview top ranking and justice officials, to obtain documents from the archives — and I think that’s a very positive sign.”