Only two people know for sure what happened during a crucial January 6 phone call, as the U.S. Capitol was being ransacked by a swarm of insurrectionists, between Kevin McCarthy and Donald Trump: Kevin McCarthy and Donald Trump. The big question now for the newly-formed House Select Committee on the Capitol insurrection is whether it’ll have the political will and legal authority to force the truth, or some semblance of it, from either one of them.
Any serious investigator, or any sentient being, will immediately recognize the importance of the January 6 McCarthy-Trump phone call, which happened right as a pro-Trump mob overtook the Capitol. McCarthy, the Republican House Minority Leader, reportedly told Trump that the rioters were Trump’s supporters, and begged Trump to call them off. Trump responded by lashing out at McCarthy: “Well, Kevin, I guess these people are more upset about the election than you are.” As the conversation heated up, McCarthy channeled his inner Jersey Shore tough guy, reportedly lashing back at Trump, “Who the f**k do you think you’re talking to?” (Disclaimer: McCarthy is from California, not my beloved New Jersey; I use the Shore comparison merely as illustrative, from my own experience.)
It inexplicably (or, perhaps, quite-explicably) took Trump several hours after that call with McCarthy to say anything to his supporters who, by then, had just about finished their day’s work tearing apart the Capitol. Trump’s publicly-stated sentimentslanded somewhere between sympathetic to the seditious mob (“I know how you feel, but go home and go home in peace. I know you’re in pain. I know you’re hurt.”) and outright congratulatory (“great patriots… [r]emember this day forever!”).
McCarthy, in a rare burst of courage and integrity, publicly lambasted Trump for his role in fomenting the insurrection and then coddling those who had executed it. Speaking from the floor of the House of Representatives on January 13, McCarthy declaredthat, “The president bears responsibility for Wednesday’s attack on Congress by mob rioters. He should have immediately denounced the mob when he saw what was unfolding. These facts require immediate action by President Trump to accept his share of responsibility.” Again, folks: this is something Kevin McCarthy said, into a microphone, with cameras running, on the House floor.
If you’re suffering from cognitive dissonance at the memory of McCarthy momentarily showing some spine and standing up to Trump, let me bring you back and remind you that it took all of about three weeks until McCarthy jetted down to Mar-a-Lago to kiss Trump’s ass. The duo posed for an awkward, smiling photo in a golden room that looks like what a kindergartener thinks a rich person’s house should look like. Kevin McCarthy will be Kevin McCarthy, every time.
The January 6 McCarthy-Trump call goes to the core questions that the Committee must answer. What did Trump know about the attack as it was unfolding? What did Trump do (and not do) during those crucial hours when it seemed the Capitol might be completely overrun? Did Trump revel in the mob’s actions, or was he genuinely concerned? Why did he wait so long to say anything publicly, and why were his post-facto statements seemingly supportive of the mob?
This puts the Committee, and McCarthy, in an awkward position. First, McCarthy himself has some say in who will sit on the thirteen-member Committee in the first place. House Speaker Nancy Pelosi already has named her initial slate of picks, including seven Democrats plus Republican Liz Cheney, who voted to impeach Trump and could show McCarthy a thing or two about political courage. According to the Committee’s organizing resolution, the remaining five selections will be made by Pelosi “after consultation with” McCarthy himself. (Note the difference between “after consultation with” and “in consultation with”; the latter means they have to work it out together, but the former means Pelosi can talk to McCarthy and then disregard his recommendations.)
Whoever fills the final five slots, the Committee will be majority Democratic plus Cheney, who is no fan of Trump or his conduct on January 6. There’s no avoiding the fact that Trump’s phone call with McCarthy on that day is central to the inquiry. And it seems likely that neither McCarthy nor Trump will be enthused about talking with the Committee.
So how will the Committee approach this political and legal morass? Typically an investigative body will start the nice way, by inviting the parties to come in and give testimony voluntarily. McCarthy might be smart to accept such an invitation, to avoid the appearance that he wants to stonewall because he has something to hide. But, again: Kevin McCarthy will be Kevin McCarthy, and things can rarely be easy, or principled. He already has opposed creation of the Committee and has wailed that its inquiry will be unduly political, perhaps in part to lay the groundwork for his own resistance if called to testify. I’m not expecting game compliance here.
If McCarthy declines the Committee’s invitation to testify, then the ball is back on the Committee’s side of the court, where they must decide whether to subpoena McCarthy. If the recent past is any guide, we can safely expect House Democrats to offer up ample bluster but little action. House Democratic leaders already are reciting the usual vows to impose accountability and the like, but we’ve heard those before. Remember Jerry Nadler, and his promises to be aggressive and tough and get real answers after the Mueller report? Not so much. (See my prior pieces about Nadler’s passive incompetence here and here.)
Perhaps a subpoena will settle it and McCarthy will comply. Perhaps McCarthy won’t want to risk a prolonged battle over his testimony, potentially drawing even more public attention to his damning January 6 call with Trump. But again: it’s Kevin McCarthy. Assuming he does defy a subpoena, then will Democrats have the steel to go to court to seek to compel his testimony? Again, count me skeptical. Looking again at the Mueller investigation, it took House Democrats four months even to go to court to compel testimony from Don McGahn, and then two years to actually get that testimony. And they got virtually no testimony of any substance out of dozens of other potential witnesses.
All of these same questions apply to the Committee and Trump, by the way. His testimony is just as probative as McCarthy’s about the January 6 phone call, though I’d bet their accounts differ substantially. But tangling with Trump is inherently more politically fraught than a battle with McCarthy, and it would be surprising to see the Committee make anything more than a token effort to get the former President’s testimony.
This will make for a fascinating game of political and legal chicken. Will the Committee make the first move towards McCarthy? Will he resist? Will House Democrats fight back? Will we see a pitched internecine Congressional battle or just some light waltzing accompanied by public posturing?
McCarthy likely won’t make this easy, and the Committee must show the political courage to fight back and compel his testimony. Because ultimately, no report about January 6 can be complete without it.