If it seems that things are proceeding slowly when it comes to the House select committee on Jan. 6, that’s because they are. It took until June for the committee to be formed. Document requests went out in August. The first subpoenas were issued a month later. Steve Bannon was held in contempt of Congress a month after that.
Now it’s November. No one has been indicted. None of the four subpoenaed in September have testified. Rep. Liz Cheney may have revealed that the committee has now interviewed over 150 people, but without knowing who those people are or what they’ve said, it’s hard to estimate how much progress the committee may have made toward holding those responsible for the January insurgency responsible. From the outside, the answer certainly looks like “not much.”
One of the most frustrating aspects has to be that the committee is still fighting to see the documents it requested back in August. Donald Trump immediately tossed a claim of executive privilege over two large tranches of those documents. Almost as quickly, President Joe Biden removed that barrier, which might make it seem that the documents were then hand-carried to the select committee. Except they weren’t. Because Trump took his executive privilege claims to court, claiming that his former role still carries the right to cover up.
What Trump is trying to hide includes: the White House visitor logs for the week of Jan. 6, call logs to Trump and Mike Pence on that day, draft public statements created during the assault on the Capitol, and handwritten memos passed around the White House as Trump responded to the scenes of his supporters storming Congress. All of which sound pretty important to the committee’s investigation.
On Thursday, it seemed that Trump had a bad day in court, but that’s a bit deceptive. Any day this matter is still in court is a good day for Trump.
As someone who has been involved in over 3,000 lawsuits, Trump has one area of genuine expertise: using the courts to slow down any process. As Politico noted back in October, Trump sued both the Jan. 6 committee and the National Archives to halt the release of over 700 pages of documents with a claim that the committee’s request was “a vexatious, illegal fishing expedition.” At the core of the suit is a claim that the committee lacks a “legislative purpose” in seeking the documents which, according to the suit, makes the entire request “unconstitutional.”
In Thursday’s testimony, CNN reports that D.C. District Court Judge Tanya Chutkan appeared to be “skeptical” of Trump’s claims and pressed his attorneys over why there should be any protection of the requested documents.
That doesn’t mean the day was a complete sweep for Team Congress. Chutkan also acknowledged that some of the documents being requested, like internal polling data from Trump’s campaign, appeared to be "tangential" to the actual investigation and that "there has to be some limit" to what the committee can request. At various points during the day, Chutkan noted that Congress’ requests were “very broad” or even “alarmingly broad.”
All of this could play into a request from Trump’s team that the district court review the documents one at a time, allowing challenges to each—a task that Chutkan noted would take “years." But with the judge also acknowledging that some of the documents didn’t seem to have direct value for the investigation, there’s a danger that such “this one, but not this one” consideration could begin, turning every page of the documents into its own unique court fight.
Trump’s team understands they don’t have to win. They’re only doing what they did so well during past congressional investigations: stalling. No matter what the district court says, there is always the court of appeals, and no matter what that court says, there’s always the Supreme Court. All of them separated by weeks or months.
Without some kind of expedited consideration, it’s not at all difficult to contemplate these same documents being the subject of a Supreme Court ruling issued well into 2022. It’s also not difficult to contemplate that the court’s Trump-centric majority might discover that most of what the committee requested was out of bounds, or even that Congress can only request documents having to do with some existing piece of legislation—a ruling that would strongly restrict Congress’ ability to check the executive branch going forward.
How long can this all take? Congressional requests to see Trump’s tax records—an authority explicitly granted under federal tax regulations—is still wading through the courts. These are the documents Congress ordered the IRS to turn over in 2019. Back in July, it seemed that this issue was finally resolved when the Department of Justice reversed course and stopped trying to block the release. Yeah, but … it’s not over. At an August hearing, the Department of Justice argued that the documents should be produced “promptly.” Congress is still waiting.
Trump isn’t trying to win in court. Being in court is the win. If Congress actually hopes to make significant progress on the Jan. 6 investigation before the 2022 elections, it will likely have to come without the documents Trump is protecting.
Now it’s November. No one has been indicted. None of the four subpoenaed in September have testified. Rep. Liz Cheney may have revealed that the committee has now interviewed over 150 people, but without knowing who those people are or what they’ve said, it’s hard to estimate how much progress the committee may have made toward holding those responsible for the January insurgency responsible. From the outside, the answer certainly looks like “not much.”
One of the most frustrating aspects has to be that the committee is still fighting to see the documents it requested back in August. Donald Trump immediately tossed a claim of executive privilege over two large tranches of those documents. Almost as quickly, President Joe Biden removed that barrier, which might make it seem that the documents were then hand-carried to the select committee. Except they weren’t. Because Trump took his executive privilege claims to court, claiming that his former role still carries the right to cover up.
What Trump is trying to hide includes: the White House visitor logs for the week of Jan. 6, call logs to Trump and Mike Pence on that day, draft public statements created during the assault on the Capitol, and handwritten memos passed around the White House as Trump responded to the scenes of his supporters storming Congress. All of which sound pretty important to the committee’s investigation.
On Thursday, it seemed that Trump had a bad day in court, but that’s a bit deceptive. Any day this matter is still in court is a good day for Trump.
As someone who has been involved in over 3,000 lawsuits, Trump has one area of genuine expertise: using the courts to slow down any process. As Politico noted back in October, Trump sued both the Jan. 6 committee and the National Archives to halt the release of over 700 pages of documents with a claim that the committee’s request was “a vexatious, illegal fishing expedition.” At the core of the suit is a claim that the committee lacks a “legislative purpose” in seeking the documents which, according to the suit, makes the entire request “unconstitutional.”
In Thursday’s testimony, CNN reports that D.C. District Court Judge Tanya Chutkan appeared to be “skeptical” of Trump’s claims and pressed his attorneys over why there should be any protection of the requested documents.
That doesn’t mean the day was a complete sweep for Team Congress. Chutkan also acknowledged that some of the documents being requested, like internal polling data from Trump’s campaign, appeared to be "tangential" to the actual investigation and that "there has to be some limit" to what the committee can request. At various points during the day, Chutkan noted that Congress’ requests were “very broad” or even “alarmingly broad.”
All of this could play into a request from Trump’s team that the district court review the documents one at a time, allowing challenges to each—a task that Chutkan noted would take “years." But with the judge also acknowledging that some of the documents didn’t seem to have direct value for the investigation, there’s a danger that such “this one, but not this one” consideration could begin, turning every page of the documents into its own unique court fight.
Trump’s team understands they don’t have to win. They’re only doing what they did so well during past congressional investigations: stalling. No matter what the district court says, there is always the court of appeals, and no matter what that court says, there’s always the Supreme Court. All of them separated by weeks or months.
Without some kind of expedited consideration, it’s not at all difficult to contemplate these same documents being the subject of a Supreme Court ruling issued well into 2022. It’s also not difficult to contemplate that the court’s Trump-centric majority might discover that most of what the committee requested was out of bounds, or even that Congress can only request documents having to do with some existing piece of legislation—a ruling that would strongly restrict Congress’ ability to check the executive branch going forward.
How long can this all take? Congressional requests to see Trump’s tax records—an authority explicitly granted under federal tax regulations—is still wading through the courts. These are the documents Congress ordered the IRS to turn over in 2019. Back in July, it seemed that this issue was finally resolved when the Department of Justice reversed course and stopped trying to block the release. Yeah, but … it’s not over. At an August hearing, the Department of Justice argued that the documents should be produced “promptly.” Congress is still waiting.
Trump isn’t trying to win in court. Being in court is the win. If Congress actually hopes to make significant progress on the Jan. 6 investigation before the 2022 elections, it will likely have to come without the documents Trump is protecting.