The House Select Committee to Investigate the Jan. 6 attack on the Capitol is endowed with inherent contempt power summarily to imprison or fine any person for defying a subpoena for documents or testimony. That power was unanimously confirmed by the United States Supreme Court nearly a century ago in McGrain v. Daugherty.
The congressional need for every person’s evidence is at its zenith in investigating the unprecedented resort to criminal force and violence to prevent the peaceful transition of presidential power when all peaceful avenues of redress — including courts populated with President Donald Trump’s appointees — were open and functioning. The supreme evil of Jan. 6 cannot be ignored because the United States cannot survive that evil being repeated.
The use of the committee’s inherent contempt power is urgent. Televised hearings are scheduled to commence tomorrow evening. Six members of the House have refused to talk: House Minority Leader Kevin McCarthy (R-Calif.), Jim Jordan (R-Ohio), Scott Perry (R-Pa.), Andy Biggs (R-Ariz.), Ronny Jackson (R-Texas) and Mo Brooks (R-Ala.). Until last month, when five of the six were sent subpoenas, the committee neglected to even subpoena their colleagues despite the absence of any privilege under the speech or debate clause of the Constitution. It shields members from coercion by the executive or judicial branches, but not from Congress itself.
Further, last week, the Department of Justice informed the committee that it would decline to bring criminal contempt prosecutions against Mark Meadows, chief of staff to former President Donald Trump, or communications chief Daniel Scavino, for defying committee subpoenas. Even if criminal prosecutions had been forthcoming, the trials would have come too late to assist the paramount informing function of the committee. The criminal contempt prosecutions against Steve Bannon and Peter Navarro will prove equally otiose to the committee’s purpose. Courts are lead-footed, not mercury-footed, which is the whole purpose behind the committee’s summary inherent contempt power. Timing is everything in politics. Yet the power remains mothballed by the committee like a stowed wedding dress.
The committee has inexplicably not issued subpoenas for former President Trump and former Vice President Mike Pence. (The House Judiciary Committee voted an article of impeachment against President Richard Nixon for flouting four committee subpoenas). Trump and Pence are the marquee and best witnesses regarding the subject under investigation.
Public evidence is overwhelming that Trump repeatedly badgered Pence with a corrupt motive to unconstitutionally refuse to count state-certified electoral votes for the 2020 presidency that had cleared more than 50 court challenges, Trump’s own attorney general, William Barr and Trump’s own cybersecurity chief Christopher Krebs, who characterized the voting processes as “the most secure in American history.” Many others within Trump’s circle have echoed Barr and Krebs.
Trump’s undisputed browbeating of Georgia’s Republican Secretary of State Brad Raffensperger to falsify Georgia’s presidential election results corroborates Trump’s corrupt motive in badgering Pence, as does Trump’s tacit condoning of the ambition of the Capitol insurrectionists to “Hang Mike Pence.”
To hold committee hearings without Trump, Pence and others previously identified would be like holding the Senate Watergate hearings without President Nixon’s Chief of Staff H.R. Haldeman, Domestic Policy Advisor John Ehrlichman, Attorney General John Mitchell, and White House Counsel John Dean. It would trivialize the monumental importance of the exercise to remaining a government of laws rather than of men.
The committee should thus vote to imprison and fine every person who has defied a subpoena, including Meadows, Scavino, Bannon, and Navarro. It should subpoena Jackson and follow through on subpoenas to McCarthy, Jordan, Perry, Biggs and Brooks by likewise imprisoning and fining them if compliance is not forthcoming. The same should be done for Trump and Pence.
Maybe the committee fears that inherent contempt power if unsheathed could be used against its members or Democrats generally if Republicans capture control of the House in November. Maybe the committee thinks like Shakespeare’s Falstaff that, “the better part of valor is discretion.” But that cowardliness will not save the country. Where, as here, the Constitution and the rule of law are in the balance, there is no room for summer soldiers or sunshine patriots.
Bruce Fein was associate deputy attorney general under President Reagan and is the author of “Constitutional Peril: The Live and Death Struggle for Our Constitution and Democracy.”