Across social media and in comments on the news, there’s growing consternation over the state and the work of the January 6 Commission. Earlier this week, for example, we learned that Steve Bannon, the former advisor to the former president who is refusing to sit for deposition before the Committee, won’t face trial for his contempt of Congress until July of 2022. We also learned that Roger Stone, the political trickster who seems to be in the room on every conspiracy, will plead the Fifth rather than answer the Committee’s questions. Stone now joins Mark Meadows, the former Chief of Staff at the White House, who has indicated he will end cooperation with the Committee on grounds it is disrespecting Trump’s rather dubious claims of executive privilege. John Eastman and Jeffrey Clark, two former Trump legal advisors, have already pled the Fifth after memos surfaced showing they apparently were at the heart of the “soft coup” attempt around January 6.
This parade of stonewallers has led to some common, pointed questions. How on earth will the Committee perform its work if no one is cooperating? Won’t this delay over Bannon’s trial mean their work won’t be done before the midterms? Isn’t that why they’re just trying to run out the clock? What happens to the Committee if, God forbid, the GOP retakes the House in 2022? And where the hell is Merrick Garland?!
A deep breath moment is in order. Let’s unpack.
If these defendants won’t cooperate, is the Committee screwed?
Let’s imagine the Committee to be a set of investigators on a criminal case. They are reviewing evidence of a crime that appears to have involved a lot of different people acting together. There are the ringleaders, and there are scores of others who took orders from them. Throughout the planning and execution of the crime, a flurry of communications, memos, texts and evidence was generated.
The investigators decide to start with the scores of people who took orders. They begin interviewing them, behind closed doors so they can’t coordinate their stories, and over 300 of them agree to talk. As the investigators bring more people in, they learn many details about what happened. The documentary and physical evidence produced by these witnesses solidly corroborates the collective story they tell. As the investigators move up the chain of command and begin to call in the ringleaders, suddenly some witnesses begin to clam up. They refuse to come in for an interview. They plead the Fifth.
What would this tell us about the investigation? For starters, it would signal that they are getting closer to the truth, and those most at risk know it. That’s why they don’t want to cooperate or talk. Are investigators worried that the case is dead in the water? Of course not. They know that most criminal defendants refuse to take the witness stand, and for good reason. Those in legal jeopardy are unlikely to take risks that could deepen the hole they’re in already.
More importantly, are investigators worried that prosecutors won’t be able later to prove their case without the defendants cooperating and testifying? Again, of course not. Most cases are proven by evidence that isn’t provided directly by the defense. Physical evidence, authenticated and corroborated by third parties, along with eyewitness testimony from those who are not themselves defendants, are how most juries convict. Most defendants who are found guilty never utter a peep.
The same holds true here. If there is evidence that there was a criminal conspiracy against the United States to overturn the election, it will be admitted by way of third-party testimony and documentary or physical records. The Committee doesn’t need Bannon, Stone, Meadows, Clark or Eastman to corroborate these facts if it has their paper trails and the assistance of their many dozens of underlings.
But what about all this delay? Bannon’s trial isn’t until July!
The public is understandably anxious to see justice meted out against scofflaws like Bannon. So it isn’t surprising that there were howls of protest over the idea that his criminal trial for contempt of Congress wouldn’t happen until July of 2022. But this is only seven months away, six if you factor in that nothing much ever happens over the holidays. Most federal court calendars schedule trials between 12 and 18 months out, so in some measure a July trial date can be seen as rather speedy, especially given the backlog in dockets due to the pandemic.
Scheduling aside, we shouldn’t focus too much attention on the trial of Steve Bannon. His conviction would not move us any closer to the truth about what happened on January 6. That means, by definition, that the Bannon case is little more than a sideshow. After all, had Bannon wanted to comply with the subpoena but still remain wholly unhelpful, he could have simply pled the Fifth at his deposition. Instead, he wanted to make a statement and prove his loyalty to the former president before the far-right base. He even probably will be able to fundraise off of his defiance. If convicted, he will face up to one year and $100,000 for each of the two counts, but he would probably relish the martyrdom that comes with the sentence.
The charges against Bannon were important for far different reasons: They demonstrated the Committee’s unity and resolve to hold people to account, and they will deter other witnesses from taking the same course of action.
Bannon’s trial, by the way, will also be extremely expensive. Not many witnesses have his financial resources or the ability to fundraise to cover the cost of the trial. That could be a major consideration for any witness who is contemplating outright defiance and the risk of criminal contempt proceedings.
But Aren’t They Just Trying to Run Out the Clock?
There is certainly legitimate concern that the entire tactic of Trump and his cronies is to create enough legal muck to halt the wheels of justice from grinding forward. This was an effective tactic when, for example, there was only a limited amount of time to hold impeachment hearings and a Senate trial of the former president. Many witnesses could simply shrug and say they weren’t going to show, and given how much time was left and how compacted the timeframe for hearings and trial were, that effectively prevented the public from seeing them questioned at all.
The same can’t be said here. If Rep. Liz Cheney is to be believed, the Committee will hold very public hearings in 2022 that will lay out “in vivid color” the entirety of what the Committee has learned about the events leading up to and including the attack on the Capitol on January 6. No amount of stonewalling by the former president or his advisors will prevent that from happening.
Moreover, while the Committee would love to receive from the National Archives all of the now non-privileged records of the Trump White House relating to efforts to overturn the election, and that matter is looking far more likely in light of the Court of Appeals ruling in the Committee’s favor, that is not the only place where such documents are being sought or turned over. The cover letters for subpoenas and the contempt referral reports for Bannon and Clark already reveal that the Committee has ample documentary evidence to demonstrate that these men were part of a larger conspiracy against the United States. Prosecutors may be satisfied, possibly by next year, that the evidence already gathered by the Committee warrants empaneling of a grand jury to begin indicting co-conspirators.
Would it be nice to get the ringleaders to confess their crimes and make the Committee’s job easier? Of course. But the defiance and silence of these possible future defendants is unlikely to gum up the work of the Committee in any ultimate way. It will continue to interview dozens of witnesses and gather its facts. And if Trump or his cohorts hope to stop the Committee from holding what could be quite damning public hearings next year and ultimately issuing its report, they so far have not succeeded.
But what happens if the GOP retakes the House?
The Committee knows that it must complete its work before the GOP has a chance to strike at it politically. It is nearly a foregone conclusion that if Republicans are in charge come January 2023, the Committee, as a Select one, would no longer be serving at the pleasure of the new majority leader. Rep. Bennie Thompson, who is the Committee’s chair, understands that there is certainly an end-point beyond which he shouldn’t plan to hold a gavel.
The goal of the Committee, beyond its current phase of investigation, will be to illuminate for the public what happened and issue a report that recommends legislative solutions to help prevent it from happening again. That report could also form the basis for criminal proceedings should the facts show that crimes were committed, as is increasingly clear. Even if the GOP retakes one or both chambers of Congress in November of next year, the White House and the Justice Department will remain unchanged, and nothing from the new Congress can prevent the Attorney General from moving forward with prosecutions if the evidence warrants them.
Speaking of which, where is Merrick Garland?
There is growing frustration that the new attorney general has not opened cases against the former president or his allies on a number of matters, from obstruction of justice detailed in the Mueller Report to election interference in Georgia. As far as we know publicly, nothing has happened in these areas. There is also a general, and some might say regrettable, sense that this administration does not want to spend its time looking backward at this time, especially as it moves to complete an ambitious legislative agenda, but that doesn’t capture all of what might be going on.
Garland might logically calculate that Trump is facing legal jeopardy on a number of fronts, including grand juries in Manhattan and Fulton County that are investigating his actions before and during this time in the White House. If bills of indictments issue from any of these juries, that may begin an avalanche of legal woes on which other federal charges can be added more readily—without as strong a risk that the move will be seen as purely politically motivated.
Further, it would be far better for our politics if members of Trump’s own party, including Reps. Cheney and Kinzinger, were among those calling for the conspirators to be held to account. The Justice Department could more or less present the findings of the Committee to a grand jury in D.C. and thereby more easily counter the charge of a political witch hunt. This will be especially true if the press and the American people are better informed by next year, via public hearings by the Committee, about what exactly transpired. If calls for charges are widespread, the Justice Department can act without delegitimizing its own position.
The somewhat unsatisfying answer, then, to “Where is Merrick Garland” is this: He likely is waiting. Jumping in now with charges, taking the podium away from the Committee, would gravely undermine its work and play into the idea that it is not seeking facts but rather doing the work of the Biden White House. That simply can’t be the right or wise thing to do. Hard as it is, it remains prudent to caution patience and assume that Garland really does know what he is doing.
It’s also not as if the Department isn’t busy. The number of federal criminal cases relating to January 6 already tops 670. Earlier this year, the offices and home of Trump lawyer Rudy Giuliani were raided with electronic devices seized. Now there is a trial of Steve Bannon scheduled, with likely future criminal contempt proceedings beginning against Clark, Eastman, Meadows and Stone. Nothing in the history of the Department even compares to the monumental work it has undertaken in the wake of the attack on the Capitol.
Could Garland and the Department disappoint us? Of course. But it is premature to conclude that they will, and at each critical turn so far they have come through, even if far later than an anxious public demands. Rather than worry about where Garland is, it would be more productive to focus on the substantive work of the Committee and the facts it has already gathered and will continue to gather. That will tell us far more about whether we will see justice next year. Thus far, the outlook for real accountability looks promising.
For more political analysis, check out the Status Kuo newsletter.