Watching Jan. 6 Paint Dry
Terry H. Schwadron
Dec. 11, 2021
The actual work of the inquiries into the Jan. 6 insurrection attempt at the U.S. Capitol may be moving apace for its participants, but the pace seem glacial to the rest of us.
Yes, hundreds have been prosecuted for having stormed the Capitol in the name and cause of Donald Trump and a perceived stolen election, and the Congressional select committee has interviewed nearly 300 officials, police, and participants in planning towards the rally-turned-riot.
But most of these inquiries take place behind closed doors or in individual courtrooms, and there the only real public light is coming from those resisting subpoenas to testify and from various leaks of information that come out of letters that protest the summons in the first place.
Just this week, for example, we learned from letters that former Chief of Staff Mark Meadows turned over to the committee — as he was also telling the panel that he would not cooperate, even suing them claiming overly broad requests for information — that detail Power Point presentations outlining how to subvert the election certification process in Congress.
For all those reasons, Thursday’s unanimous, three-judge U.S. Court of Appeals ruling that Trump cannot claim executive privilege to keep White House materials secret from the committee takes on greater importance. The next stop is a Supreme Court that now has a legal roadmap that aims to put Trump’s actions leading to and on Jan. 6 in the picture, but it all still seems far away from any practical reckoning for his personal responsibilities.
Meanwhile, his team continues to play the legal system for delays until a new Congress majority can simply crush any investigation. And we have no idea of whether the Justice Department is pursuing a parallel investigation of the causes of what sure looks to be a crime against the country.
Forcing Trump’s Hand
In its 68-page ruling, that appeals court decided that Congress’s oversight powers, backed by Joe Biden’s decision not to invoke executive privilege over the material, outweighed Mr. Trump’s residual secrecy powers.
Along the way, the judges gave fairly harsh reviews of the events of Jan. 6, insisted that in a dispute between a former and current president, the guy currently in the chair should rule the day, and raised novel and untested constitutional questions about the scope and limits of a former president’s ability to keep records from his administration.
Presumably this is what a pending appeal to the U.S. Supreme Court would have to resolve. Interestingly, of course, what the Constitution says is only that executive power resides in the president, not that presidents legally can protect communications and actions masking criminal behavior. The general tradition is that presidents have a right to private communications in making policy, but there is no explicit language about refusing to meet congressional oversight demands by the president or his staff — to say nothing of a former president. Given the insistence of conservatives on the court to find explicit mention for rights, it would seem incongruous for them to find in Trump’s favor in this matter, especially since Biden takes the opposite position.
Specifically at issue is whether the courts should delay compliance by the National Archives in turning over records until the case is fully litigated.
The Line of Refusals
Meanwhile this week, Meadows joined with Trump advisors Steve Bannon and Roger Stone, former Justice Department official John Clark, and Trump legal strategist John Eastman at snubbing the congressional subpoena. They know all will face contempt charges from Congress and from Justice — though, again, that process seems to be taking forever. Bannon’s trial has been set for next July.
The weirdness about Meadows, the only one of the groups with a potentially legitimate claim about executive privilege as a White House counselor, is that Meadows already has been delivering documents, has published a book, and is talking openly about those days in the White House, sometimes even joining Trump in calling his own words “fake news.”
Committee members say Meadows’ delivered documents show that the White House was heavily involved in planning strategies cited on Jan. 6 to keep Congress from certifying Biden as the election winner. Even non-lawyers should be able to see legal contradictions from turning over documents and then claiming you can’t. Those Power Point slides to which Meadows referred to in an email provided to the panel, show a plan for Trump to declare a national emergency to delay the vote certification.
At the same time, the campaign to declare an entire alternative, “innocent” version of Jan. 6 eventscontinues to run amok on Fox News and other right-leaning sites. Just this week, Tucker Carlson welcomedJoseph McBride, a lawyer who has represented people arrested for their roles on Jan. 6, to assert that these were “false flag” arrests and cited one supposed agent provocateur as a Democratic plant. By the next day, of course, that “agent” turned out to be a Trump supporter from St. Louis.
An article by Ryan J. Reilly of Huffington Post outlines a series of such claims without much evidence for the alternative explanation.
Eugene Robinson, Washington Post columnist, notes that Meadows’ documents reflect “pretty explosive stuff” that should be coming from the committee publicly rather than because of letters between Meadows’ lawyer and the committee staff. “The select committee has no power to prosecute. Its only job is to reveal — and to do so in a way that makes the nation pay attention, said Robinson.
We’ve been at this for 11 months, and it looks as if delay is only stoking more division.
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