January 6 committee prepares legal arsenal for probable fights to appear

“We have the full panoply of sanctions available for those who refuse to comply with a subpoena from Congress,” said Representative Jamie Raskin (D-Md.), One of the nine members of the Jan.6 Committee. . “We want the truth to come out, not just about the infantry, but also about the generals. “

“We are very aware that time is running out,” added Representative Zoe Lofgren (D-Calif.), A panel member and veteran of three presidential dismissals.

The Jan. 6 panel expressed impatience last week when it skipped the usual haggling over voluntary testimonials, instead slapping former White House chief of staff Mark Meadows, the longtime aide. of Trump Dan Scavino, former Trump adviser Steve Bannon and national security aide Kash Patel with subpoenas. Only one of the witnesses commented in public – Patel, who complained about the process.

Based on interviews with seven lawmakers from the January 6 committee, here are the options the committee is about to pursue, should these witnesses and others decide to fight back:

1) Civil and criminal contempt

Representative Adam Schiff (D-Calif.) Previewed the possibility of outraging resistant witnesses last week, noting that while quotes from Congress were often ignored during the Trump presidency, Biden’s Justice Department is less likely to obstruct. This appears to be the first action the Jan.6 committee will take if any Trump allies defy the subpoenas.

Asked about the possibility of contempt proceedings, Representative Elaine Luria (D-Va.) Told reporters that the committee had “discussed all of the actions, and we’ll wait and see how people react, then decide what is. appropriate action after that “.

2) “Use” immunity

Congress has been reluctant to offer witness immunity in politically sensitive investigations, fearing that extending even limited protection to potential criminals could derail potential prosecutions. But the Jan. 6 investigation could be an exception.

Several panelists said that, if necessary to cajole the testimony of a reluctant witness, offers of immunity were in their arsenal. And they stressed that their decisions are carefully coordinated with the Justice Department to ensure they don’t disrupt the Justice Department’s January 6 parallel investigation.

“There has been an ongoing conversation with the Department of Justice as we move forward,” Thompson said.

Congressional investigators could take this tactic even further and offer specific immunity known as “use” immunity, according to Lofgren. The use of immunity allows witnesses to testify as to their conduct without risking prosecution for anything they say in the testimony.

Although prosecutors could theoretically still lay charges based on separately gathered evidence, the Justice Department has encountered major problems in the past in prosecuting witnesses who have testified under such immunity. As such, “using immunity” offers important protection for witnesses to discuss potentially criminal acts that they or their associates may have committed.

A strange wrinkle might help the committee’s information gathering. Lofgren noted that anyone pardoned by Trump for conduct related to the committee’s investigation would be unable to invoke the Fifth Amendment right to refuse testimony. It’s unclear which witnesses might fit this description, but Trump has granted post-election pardons to a handful of witnesses the Jan.6 committee has expressed interest in obtaining information on: Bannon, Roger Stone, Michael Flynn , Bernard Kerik and George Papadopoulos.

3) External pressure

Members of the January 6 committee say they have a club that would not force them to go to court at all: fear of the unknown. Countless numbers of witnesses have come forward to provide voluntary testimony – and their cooperation may scare some ex-Trumpers into working with investigators, rather than letting others speak for them.

“At some point, these people might start to wonder what kind of information we already have,” Raskin said. “No one should be thinking that they are going to sweep the facts under the rug.”

“We have a number of people who have contacted us and who come without a subpoena to talk to us,” said committee vice chair Liz Cheney (R-Wyo.). She added that the committee had already met witnesses “in certain cases”.

The committee even gleaned useful information from a public advice line, including “valuable leads and additional people,” Luria said.

4) Joe Biden

Perhaps the most important weapon in the January 6 Committee’s arsenal is the current president. Only Biden – the CEO – can invoke executive privilege to prevent the disclosure of a predecessor’s secrets. And the White House has signaled that Biden is strongly considering relinquishing the privilege with respect to the material sought by the Jan.6 panel.

This could also apply to the testimony of former White House aides, some of whom presumably would have been considered part of Trump’s inner circle.

5) inherent contempt

Perhaps the least likely option in the committee’s toolbox is inherent contempt: the unilateral authority of Congress to fine or even jail recalcitrant witnesses.

While there is little doubt that Congress has this authority, it has remained in disuse for a century. And in recent congressional inquiries – despite howls from some Democratic factions to dust it off – House attorney Doug Letter made it clear that this option simply would not be feasible, both on a practical level. and politics.

Schiff noted that attempting to exercise inherent contempt could still end up in federal courts, bogging down the process for months and undermining the decision to deploy it in the first place.

But that hasn’t stopped lawmakers from considering this possibility. House Majority Leader Steny Hoyer, when asked Tuesday about the prospect of inherent contempt, said the process “is on the table and will remain so.”

Raskin confirmed that the committee did not rule him out.

“There is a growing appetite for using Congress’ own contempt powers,” he said.

Josh Gerstein contributed to this report.

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