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By Elie Honig

Dear Listener,

Last week, the House Committee on January 6 served its first batch of subpoenas on four key players from former President Donald Trump’s inner circle: Mark Meadows, Dan Scavino, Steve Bannon, and Kash Patel. It’s a smart list, and a good starting point. Each person apparently has firsthand knowledge of the planning leading up to January 6, and Trump’s actions on that day as the Capitol attack went down.

But the odds that any of these four will actually appear as commanded and testify rest somewhere between “Trump admits he lost the 2020 election” and “Jets win the Super Bowl.” So what does the Committee do when (not if) the fab four refuse to comply?

Congress has three options. First, Congress used to exercise its own inherent enforcement authority, but we can move past that one quickly. Congress has left this power dormant for nearly 100 years, and the current Sergeant at Arms simply isn’t going to start locking people up in some hidden Capitol Hill chamber. It’s interesting in theory and in historical perspective, but it’s not realistically in play in 2021.

Second, the Committee could go to court to seek enforcement. That is a viable option, and worth pursuing. But it’s also likely to take more time than the Committee realistically has, as I discussed in a prior column

That brings us to option three: potential criminal prosecution for contempt of Congress. The word “potential” is key here because ultimately the big decision falls not to Congress or the Committee, but to the Justice Department and Attorney General Merrick Garland. But the prosecution option, promising as it may seem on its face, poses a thicket of practical and legal problems.

Here’s how it would work. First, a subpoena recipient refuses to comply (likely, all four of them will do so here). No documents produced on October 7 as commanded, no testimony on October 14 and 15. The Committee would then refer the subpoena-defiers to the full House for a contempt vote, and the Democratic-controlled House would vote by a majority to hold them in contempt. At that point, the House would refer the cases to the Justice Department for potential criminal prosecution. Understand that there’s nothing magical about a “referral” — it’s simply a request by any outside party for a prosecutor to take a look. Sure, a referral from Congress carries political heft and will draw attention from DOJ’s bosses, but legally it carries no more weight than a humble handwritten letter from a common citizen. 

The ball then rests in DOJ’s hands. It is a federal crime for any person who has been subpoenaed by Congress to “willfully make[] default, or who, having appeared, refuse[] to answer any question pertinent to the question under inquiry.” It’s a misdemeanor offense, so the maximum punishment is one year behind bars. But there’s also an unusual mandatory minimum sentence of one month (typically, misdemeanors carry no mandatory minimum, and the vast majority of people convicted of misdemeanors don’t get prison time at all). 

There are advantages to the prosecutorial approach, but it’s far from a cure-all. First, it might not even get off the ground. That’ll ultimately be up to Garland, not Congress. Will the Attorney General approve indictments of not just one, but likely four, of the most combative members of Trump’s inner circle — and maybe more, as the Committee issues more subpoenas moving forward? On one hand: of course DOJ should prosecute. You can’t simply countenance people freely defying Congress, or else Congress loses much of its investigative and oversight power. 

But it’s not that straightforward. Garland surely will ask himself: does the Justice Department want to initiate a series of criminal prosecutions that will be widely seen (correctly or not) as politically driven, where the defendants will be hailed as martyrs — perhaps not by a majority of the country, but surely by tens of millions of Americans? Garland has shown no appetite whatsoever for that type of potentially explosive political battle thus far. 

And while it might feel satisfying to issue the indictments, play this thing out beyond that. Every one of these putative defendants would have the right to go to trial, and very likely would do so; I sure don’t see Meadows or Patel or Bannon taking a plea. At that point, there’s no assurance of ultimate success, and the Committee would run right back into issues with timing and delay. The defendants likely would move to dismiss the indictments based on the same arguments they might raise in a civil enforcement action — executive privilege, absolute immunity, selective prosecution, the kitchen sink. If the defendants can establish some legitimate legal basis on which they could refuse to testify, then any prosecution for contempt is dead in the water. I don’t believe the defendants ultimately would prevail on an executive privilege argument, to take one example — but it certainly would take time to adjudicate, even in the context of a criminal prosecution.  

Recent precedent doesn’t favor prosecution either. Over the past decade, Congress has formally held a handful of people in contempt: Attorney General William Barr and Commerce Secretary Wilbur Ross in 2019 (for defying House subpoenas over the Trump Administration’s failed effort to add a citizenship question to the census), IRS official Lois Lerner in 2013 (for refusing to testify in an investigation of IRS abuse of power), and Attorney General Eric Holder in 2012 (for refusing to turn over documents relating to the so-called “Fast and Furious” scandal). None of these cases resulted in criminal prosecution by DOJ. (But, then, it would’ve been particularly awkward for the Justice Department to prosecute and potentially imprison its own attorneys general, Barr and Holder.) 

In fact, it has been over 70 years since DOJ last brought criminal charges for contempt of Congress, in 1950. In that case, a union leader named Thomas Quinn was indicted and convicted — but the Supreme Court in 1955 threw out the conviction because the defendant had invoked his Fifth Amendment right against self-incrimination. 

Speaking of the Fifth: the targets here hold a trump card, so to speak. Any of them can choose to remain silent and avoid potentially incriminating themselves. They’d all have a legitimate basis to invoke the Fifth. The Justice Department continues to investigate crimes around January 6 (though it has shown a disturbing unwillingness to bring the most serious available charges and to charge the people who organized and incited the attack), and Bannon is also reportedly under investigation for fraud by New York state prosecutors. If any or all of the subpoena recipients take the Fifth, Congress can compel their testimony only by granting immunity, a time-consuming process that could jeopardize potential future prosecutions. And DOJ would have no basis on which to pursue criminal charges for contempt if these targets invoke the Fifth. 

In the coming weeks, you’ll hear plenty of people calling on Garland to prosecute Meadows and the gang as they begin to officially defy the Committee’s subpoenas. But it’s uncertain at best whether Garland will pull the trigger and, even if he does, the road to conviction is long and bumpy.

Stay Informed,