Congressional Democrats sparred with Donald Trump and his allies while he was in office over enforcing subpoenas to gain access to a range of the former president’s financial documents including his elusive tax returns. Now, lawmakers are engaged in a similar fight with the Trump White House as they issue subpoenas related to the Jan. 6 attack at the U.S. Capitol.
At a Tuesday night meeting, the Jan. 6 select committee will vote on a report that recommends holding former Trump adviser Stephen Bannon in contempt of Congress for defying a subpoena seeking documents and testimony. The House panel is expected to adopt the criminal contempt referral, which will escalate a lengthy legal tug-of-war with Trump’s inner circle. From there, the report goes to the House for a full vote and then over to the Justice Department.
Trump is instructing those who’ve received subpoenas to claim executive privileges over their communications, documents and testimony. But while Bannon refuses to cooperate with investigators, the Jan. 6 committee says former White House chief of staff Mark Meadows and former Pentagon official Kash Patel are both complying with subpoenas. The panel, consisting of seven Democrats and two Republicans who voted to impeach Trump over his response to the riots, also sent a subpoena to former communications aide Dan Scavino, but after a struggle to physically locate him, the subpoena was delivered later than the others.
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In another effort to weaken the panel’s oversight authority, Trump is also seeking to block the committee’s request for a large tranche of Jan. 6 records housed at the National Archives and Records Administration. On Monday night, he sued the committee and agency in D.C. district court. His lawsuit argues that there’s “no legitimate legislative purpose,” that former presidents have “inherent constitutional rights of privilege” and that the National Archives needs more time to review all of the documents, including the few dozen he claims have privilege protections.
Trump has repeatedly claimed that the sought-after documents are privileged but President Joe Biden will not assert those protections – at least for the first batch. Trump’s lawsuit goes further to argue that Biden can’t “unilaterally” waive those rights for a former administration. But the Biden White House believes the select committee should be privy to those documents because of the gravity of the deadly attack on Jan. 6 and what his predecessor may have known.
“As President Biden determined … the constitutional protections of executive privilege should not be used to shield information that reflects a clear and apparent effort to subvert the Constitution itself,” White House press secretary Jen Psaki said at Tuesday’s briefing.
House Intelligence Committee Chairman Adam Schiff of California, who also sits on the select committee, said he expects the Democrat-led House to move quickly on Bannon’s contempt proceedings once it clears Tuesday’s initial vote. Schiff played a major role in Trump’s 2019 impeachment proceedings and stoked the ire of Republicans over what they claimed was a “witch hunt.”
“The full House will vote to hold him in criminal contempt, and then the speaker will ultimately refer that contempt to the Justice Department, where the statute says that the Justice Department has the duty to present it to the grand jury,” Schiff said Sunday on MSNBC.
“We hope to take it up very soon, but we’re not messing around here. We’re moving very expeditiously,” he added. “So we intend to go after anyone who doesn’t provide information that they’re lawfully compelled to, to our committee.”
Amid Trump and Bannon’s defiance, the committee says it will not be deterred in investigating what happened before and on Jan. 6 and what Trump, his closest advisers and those in the government may have been aware of as rioters violently breached the Capitol and tried to stop the certification of Biden’s victory. The panel is raising similar concerns to ones from a few years ago when Democrats argued Trump was stonewalling their oversight of his administration and business practices. And Democrats say that same stonewalling could slow efforts to uncover more about the Capitol attack.
Trump is using the same arguments of exerting privileges and discrediting oversight authority like he did as a sitting president, particularly when he fought a 2019 subpoena from another House committee to obtain years of financial records from his accounting firm Mazars USA. The biggest difference between the subpoena fights is that Trump and his advisers are no longer at the White House. But the legal battles could still span years and prompt examinations into privileges for former presidents.
And, just as when he was president, he’s pushing back.
“The committee is motivated by one thing: delivering political wins for the Democrats,” said Taylor Budowich, a spokesperson for Trump and his super PAC Save America. “That’s why they’ve set a rapid timetable that steamrolls the Constitution, legal precedent, and established process.”
