November 30, 2021

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The House Select Committee has issued more subpoenas, but that’s not the same as taking action

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All six of those facing new subpoenas have connections to the way in which Trump refused to accept the outcome of the election and created the conditions leading to insurgency. That includes Flynn, who headlined “Stop the Steal” rallies in the weeks after Election Day; Stepien, who worked with the organizers of those rallies to coordinate the message of the Big Lie; Kerik and Miller, who were both part of the Jan. 5 meeting with Rudy Giuliani and Steve Bannon at which the events of the following day were planned; McCallum, who reportedly got hands-on in trying to get Michigan state representatives to throw out the votes and appoint Trump electors; and Eastman … who should simply be in jail.

But the name that hangs over all six of the newly subpoenaed crew is Bannon. The Select Committee issued its first round of subpoenas back on Sept. 24. After a month of refusals, the committee moved to hold Bannon in contempt on Oct. 20. The full House then voted to send the finding to the Department of Justice on Oct. 21. Then the Department of Justice … has done nothing.  

It’s been three weeks since that citation landed in U.S. Attorney General Merrick Garland’s lap, and since then the attorney general hasn’t provided so much as a signal on how, or when, he intends to respond. It’s not as if the contempt of Congress citation against Bannon came as a surprise. Every step of the event—from the subpoena, to letters with Bannon’s attorneys, to the committee vote, to the House vote—all played out in public. In fact, it was clear that the select committee would be sending such contempt charges over to the Department of Justice well before the whole process with Bannon began.

Garland had all the time in the world to work through any concerns about how he would deal with these citations before the first one arrived. So why didn’t he? Why wasn’t the Department of Justice ready with a response—yea or nay—on the day, the hour, that Bannon’s contempt citation came their way?

There is no good reason.

What there is, is a deadline. In 14 months, a new Congress will sit down in D.C. If that election were held today, there’s very little doubt it would hand the Republicans a majority in the House. Over the next year, should Democrats get their act together and pass Build Back Better, and should someone in the press point out that child care credits more than offset imaginary increases in the cost of milk, there is a chance that the polls will flip. No one should be taking that chance.

The end of 2022 may not be the end of any opportunity to hold those involved in planning and executing the insurrection responsible, but it should absolutely be treated as a hard deadline. 

That’s not just the point by which the committee must obtain meaningful testimony. By that point, it has to analyze that testimony, finalize its findings, and send Congress, the president, and the Department of Justice any recommendations for further action.

What’s happening with Bannon doesn’t make that seem likely. Neither does what’s happening with former Chief of Staff Mark Meadows, former Deputy Chief of Staff Dan Scavino, or former Pentagon  Chief of Staff (and Devin Nunes aide) Kash Patel. All of them got subpoenas at the same time as Bannon, and they’ve not even begun to be moved through the pipeline toward contempt.

It’s not just Garland’s silence on Bannon’s contempt citation that seems to doom the idea of getting anything done on time, it’s the experience of the last five years. Consider the earlier case of Michael Flynn, who agreed to cooperate with the investigation into Trump: Russia in December 2017, saw multiple extensions in 2018 and 2019, reversed his plea in January 2020, was recommended for six months in prison by federal prosecutors a few weeks later, saw his case withdrawn and reinstated in May, and was ultimately pardoned by Trump in November 2020.

Or take the efforts to obtain Donald Trump’s tax records, which are absolutely available to Congress in clear terms spelled out in law.

On April 3, 2019 House Ways and Means Chair Richard Neal sent a letter to IRS Commissioner Charles Rettig requesting six years of Trump’s business and personal returns. That should have been the end of it. Instead, the IRS simply ignored that letter. The House subpoenaed the returns in May 2019. The case went to District Court in July with the Department of Justice acting to protect Trump. After a month of inaction, the House requested a summary judgement. The judge refused and instead asked for “a briefing by both parties” to be held by Sept. 30. The judge then “urged the parties to work out a compromise” and issued a stay over the House attempt to get the documents. The Ways and Means Committee issued a new request in July 2021, the Justice Department joined the suit this time, ordering the IRS to turn over the documents on July 30. Trump sued to block the action, but on on Aug. 11, 2021 a federal district judge ruled that the committee can get access to some of the documents. Trump appealed. On Oct. 27, Trump’s attorneys were back in front of a federal judge to block the Treasury Department and the IRS from giving his tax returns to the House Ways and Means Committee.

The law entitling the chair of the House Ways and Means Committee to Trump’s tax returns is absolutely clear, but over two and half years after requesting those documents, the committee does not have Trump’s returns.

Trump didn’t learn these skills in the White House. He—like a lot of wealthy people—learned them by successfully using the courts to block collection of legitimate debts, persecute those who tried to point out his crimes, and harass people for sport in literally thousands upon thousands of cases. He knows that with sufficient money and a willing attorney, there is always another way to challenge a ruling. The whole of the judicial branch is a mechanism absolutely rife with opportunity for delay and distraction for those with the resources to exploit its weaknesses. 

It is a real question as to whether it is possible to protect the United States government from attempted overthrow, with actions carried out through the United States legal system—especially when the efforts to overthrow that government enjoy the support and resources of one of the two major parties.



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