If Republicans won’t cooperate with the January 6 commission, arrests could be made

Nearly seven months after a violent mob attempted to block Congress from certifying President Joe Biden’s electoral college win, a select committee of seven Democrats and two Republicans convened what will be the first of many hearings that committee members plan to use to tell a definitive story of the worst attack on the Capitol since Admiral Sir George Cockburn ordered its burning in August 1814.

The committee’s investigation is the House’s second attempt to bring about accountability for any Trump administration officials and Republican members of Congress who may have played a role into fomenting the events of the day. The first, a brief inquiry which led to former President Donald Trump becoming the first American president to face two Senate impeachment trials, was limited by both time constraints and the Trump administration’s wholesale rejection of the Democratic-led chamber’s investigative authority.

But even with the White House — and the executive branch — under the control of Biden and his appointees, it remains unclear whether officials of the former administration will cooperate. Also unclear is whether Democrats will be willing to do what is necessary to secure testimony from a stable of GOP witnesses that could include their own colleagues and the former president.

Over the two years of Trump’s presidency during which Democrats controlled the House, most attempts to compel testimony from administration officials were met with massive resistance from the White House and executive branch agencies. Trump and his allies made sweeping claims regarding the extent to which executive privilege — a legitimate privilege meant to protect the president’s right to receive candid advice from his advisers — shielded almost any information sought by Democrats on any subject.

In the face of this wholesale obstruction, Democrats resorted to the courts to force compliance with subpoenas. For the most part, they were unsuccessful in ever forcing a Trump administration official to testify in a timely manner.

Yet the change in administration gives at least some hope that their efforts will not spend years in judicial limbo this time. According to The New York Times, the Justice Department recently advised current and former officials that executive privilege will not be used to shield them from speaking with Congressional probes into January 6, citing the “extraordinary events” of that day. So too will the White House Counsel’s Office, which the Times reports as having determined that it would be inappropriate to assert the privilege to block an investigation into an attempt to overturn the election by Trump and his allies.

In an interview with CNN, one of the committee members, California Representative Adam Schiff, said that the House could turn to the Biden-led Justice Department to charge recalcitrant witnesses with contempt of Congress should the House vote to make an appropriate referral with a contempt citation.

“We were hampered in that the last four years because the Justice Department was hostile to the mission. Bill Barr, at times, was implicated in what we were investigating and so was not going to enforce a contempt against witnesses who were recalcitrant. Hopefully that has changed but time will tell,” said Schiff, who led the House’s first impeachment inquiry into Trump as chair of the House Intelligence Committee.

While the Justice Department may be willing to allow officials to testify without the shield of executive privilege, it’s doubtful that prosecutors would act on a contempt referral from Congress, as the department has declined to act on a number of recent examples under both Democratic and Republican administrations. That pattern is unlikely to change under Attorney General Merrick Garland, who has so far taken great pains to avoid actions that could be perceived as political.

One veteran observer of and participant in GOP politics, ex-Republican National Committee Chair Michael Steele, said the House should skip the court battles and use its own inherent contempt authority to force witnesses to testify. Under such procedures, the House could vote to direct the Sergeant-at-Arms to arrest and detain a witness who is in contempt of Congress until they “cure” the contempt by testifying.

The last time either chamber resorted to such measures was 1934, when then-Assistant Secretary of Commerce William MacCracken Jr was arrested by the Senate Sergeant-at-Arms, tried on the Senate floor, and detained for ten days at Washington’s Willard Hotel. MacCracken challenged his arrest in court, but the Supreme Court upheld his arrest and ruled that Congress had acted constitutionally.

Another prominent Republican with experience dealing with congressional investigations, former Nixon White House Counsel John W Dean, said Congress needs to do what it takes to get answers and end years of impotence when it comes to enforcing its prerogatives.

“Suffice it to say it is long past time for Congress to get its act together to be able to enforce subpoenas and they have the inherent power to do so,” Dean said. “It is in the interest of both parties to fix this fundamental problem.”

Sources close to House Democrats have suggested that inherent contempt is off the table because it has been so long since it has been used and would create a spectacle that Republicans could use to their advantage.

But Steele said the spectacle would be an advantage for Democrats.

“Democrats… had better demonstrate that they are f**king serious… and bring the hammer of the system. What the hell do you have subpoena power for? What the hell do you have a Sergeant-at-Arms with the authority to arrest for? Why do you have all these things in place [for] if you don’t know how to use them or refuse to use them?” he said. “The American people should hear and see every moment when a Republican elected official — current or former — or some other actor says: ‘I refuse to acknowledge this subpoena,’ and guess what? They’re going to get arrested and sit their ass in jail until they decide to appear. They need to create that image… for the American people, because then the American people will know this is legitimate, and it’s serious, and it’s on the way to getting an answer to the questions they have.”

Yet even if such tactics could strike fear into the hearts of potential Trump administration figures, they might not work for some of the most important witnesses: sitting members of Congress.

Both Democrats and the Republicans on the committee have indicated that they may want to hear testimony from several GOP members, including Arizona Representative Paul Gosar and House Minority Leader Kevin McCarthy, the latter of whom is on record as having spoke to Trump while his supporters were storming the Capitol.

But one expert on Congressional operations, American Enterprise Institute emeritus scholar Norman J Ornstein, warned against voting to have the Sergeant-at-Arms arrest McCarthy or any other member because Republicans would find ways to do the same to Democrats once they retake the House, even if the reasons are wholly in bad faith.

“When McCarthy warned Pelosi to ‘watch out what you do’ [regarding her rejection of McCarthy’s picks for the January 6 committee] he was being serious, and what you can imagine is them abusing this in the worst possible way,” he said. “What would be worse is if you started to throw your own colleagues into some kind of a cell in the basement of the Capitol.”

Ornstein said the House could still use inherent contempt on non-congressional witnesses, but only after laying groundwork to show that their refusal is to conceal wrongdoing: “Get to a place where… it becomes clear that they’re not doing this out of some, you know, moral protest, but on some bogus separation of powers, or executive privilege issue… because they’re trying to cover up their own culpability.”

Steele, the former RNC chair, warned that if Democrats fail to use the full extent of their power to compel answers from whoever the need to hear from, “they’re going to get caught in the vortex of politics and political name-calling and all of the typical Washington bulls**t that comes from that, and the American people will yawn, and it will be a waste of time.”

One former Republican who aided numerous congressional investigations of the Obama administration, ex-House Oversight Committee spokesperson Kurt Bardella, agreed that all options should be on the table if Democrats want to get to the bottom of what happened before and during the insurrection.

“Democrats should use every tool at their disposal to compel cooperation with the January 6th Select Committee’s investigation,” he said in a text message. “Period. Full stop.”

A spokesperson for the January 6 committee did not respond to a query on whether inherent contempt would be one of the tools employed in the course of the investigation. But should the committee — and the full House — decide to do so, Ornstein predicted that those responsible for enforcing the House’s decision will have plenty of eager help.

“The Sergeant-at-Arms is not exactly in a position to want to go out and arrest people. That’s not what they do,” he said. “But I have a feeling you may find some Capitol Police who would be happy to do that.”