Bannon is not the only one to be subpoenaed by the Jan.6 committee. Former Trump Chief of Staff Mark Meadows, Former Deputy Chief of Staff Dan Scavino, Former Chief of Staff to Acting US Defense Secretary Kash Patel and former Trump Justice Department official Jeffrey Clark were also served. Meadows, Scavino, Patel and Clark – unlike Bannon – did not say if they would comply, although their actions suggest a degree of foot drag.
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Responses to subpoenas serve to delay and frustrate the committee, which now finds itself embroiled in a legal battle that may deny the committee the information it seeks.
It also serves to point out that the committee has a range of tools at its disposal to gather testimony from reluctant witnesses. But there remains lingering uncertainty about how these committee powers collide with claims of presidential executive privilege.
Survey of the “darkest days”
Congress gave the committee a large enough load to gather evidence. On June 30, 2021, the legislature adopted House Resolution 503, instructing the committee to investigate the activities of law enforcement agencies, intelligence agencies and the armed forces relating to that day, as well as to uncover the factors contributing to the attack, including technology, social media and malicious foreign influences.
Ultimately, the committee aims to issue a report with detailed findings and suggestions for corrective action.
The select committee has already used one of its main tools to investigate the attack on the Capitol: the holding of public hearings and the invitation to testify from the main actors in the attack.
Four policemen who had defended the Capitol during the attack testified at the committee’s first hearing.
The committee is now seeking testimony from former White House staff, rally planners and members of Congress. It can also request and receive information from various government agencies and private organizations.
The panel used its power to issue subpoenas to obtain information it deems vital to the investigation of former Trump administration officials, such as Meadows, Scavino and Patel, as well as organizations that have planned the rally on January 6.
A subpoena is a legal order that requires a person to appear and testify or produce documents.
House Resolution 503 expressly authorizes the committee to issue and require subpoenas for documents and testimony.
Historically, congressional committees preferred to cooperate with other branches of government to obtain information. But if a cooperative approach doesn’t produce the information the committee needs, it may subpoena information and testimony from members of Congress, former White House staff, social media companies, and even the former president.
During his tenure, President Trump on several occasions claimed executive privilege, which allows a president to withhold certain information from Congress, the courts or the public, in response to congressional subpoenas served on officials in his administration.
Now Trump has advised his former collaborators not to testify before the committee or to provide it with documents. He claims that such cooperation would violate executive privilege. It also executive privilege claimed prevent disclosure of documents relating to his administration by the National Archives, even though the Biden administration has said it does not oppose the release of the information.
The law is far from clear as to whether a former president can successfully claim executive privilege in the face of a subpoena from Congress. The executive and legislative powers have historically preferred to avoid such confrontations and negotiate the sharing of information.
As a result, federal courts have yet to determine the extent of executive privilege retained by former presidents and when they can assert it.
Trump has widely claimed executive privilege to cover not only questions of whether he himself can be compelled to testify, but also whether his former aides should. In the case of Bannon, it is even more curious because he did not work in the White House during the period that the January 6 committee is investigating.
Little support for the claim
Resistance to the Jan. 6 subpoenas could lead courts to reconsider matters of executive privilege that have not been considered for 40 years.
In a 1977 decision, the Supreme Court ruled that former President Richard Nixon could claim executive privilege by challenging a federal law known as the Presidential Recordings and Materials Preservation Act. This law ensured that government agencies and, ultimately, the public could have access to certain documents and recordings made during Nixon’s presidency. Although the court allowed Nixon to claim executive privilege, it ultimately ruled against him and upheld the law, noting that the lack of support for Nixon’s claim by other presidents weakened his arguments for the privilege. executive.
Trump wouldn’t have a stronger claim. President Biden has previously signaled that he will not support Trump’s assertion of executive privilege in an attempt to prevent disclosure of testimony or documents relating to the Jan.6 attack. In fact, Biden’s rejection of Trump’s request to block the release of around 50 documents to prevent them from being introduced into evidence led Trump to formally claim that the executive privilege should prevent their disclosure.
As for former Trump collaborators, the Department of Justice has previously informed witnesses for the Trump administration that it does not support any claims of executive privilege on issues relating to efforts to overthrow the 2020 presidential election.
Upcoming legal battles?
In light of the Nixon affair and the positions taken by the Biden administration, former Trump officials could face an uphill battle to defend executive privilege.
Meadows and Patel are in negotiations with the panel and can try to avoid a new confrontation on the matter.
In the case of Bannon, the chairman of the January 6 committee said the panel will prosecute criminal charges, with a vote expected to take place the week of October 18.
This action shows the committee’s willingness to use its considerable power by requesting information, even if it means engaging in a protracted legal battle with the former administration.
And if Bannon and other former Trump aides continue to resist, the courts may have to step in.