Carlson is an associate professor of law and adjunct associate professor of political science at Wayne State University.
The House committee investigating the Jan. 6 attack on the U.S. Capitol is tasked with providing as full an account as possible of the attempted insurrection. But there is a problem: Not everyone is cooperating.
As of Oct. 14, 2021, Steve Bannon, a one-time aide to former President Donald Trump, has stated that he will not comply with a committee subpoena compelling him to give testimony. Bannon's lawyers have said their client is not acting out of defiance; rather, he is following the direction of Trump, who, citing executive privilege, has told Bannon not to produce testimony or documents.
Either way, Bannon now faces the prospect of criminal contempt charges.
Bannon isn't alone in being subpoenaed by the Jan. 6 committee. Trump's former chief of staff Mark Meadows, former deputy chief of staff Dan Scavino, former chief of staff to the acting United States Secretary of Defense Kash Patel and former Trump Justice Department official Jeffrey Clark have also been served. Meadows, Scavino, Patel and Clark – unlike Bannon – have not said whether they will comply, although their actions suggest a degree of foot-dragging.
The responses to the subpoenas serve to delay and frustrate the committee, which now finds itself caught up in a legal fight that may deny the committee information it seeks.
It also serves to highlight that the committee has an array of tools at its disposal to gather evidence from reluctant witnesses. But there remains lingering uncertainty over how these powers of the committee rub up against claims of presidential executive privilege.
Investigating the 'darkest days'
Congress handed the committee a fairly wide charge to gather evidence. On June 30, 2021, lawmakers passed House Resolution 503, charging the committee with investigating the activities of law enforcement, intelligence agencies and the armed forces relating to that day as well as uncovering the factors contributing to the attack, including technology, social media and malign foreign influences.
Ultimately, the committee aims to issue a report with detailed findings and suggestions for corrective measures.
The select committee has already used one of its main tools for investigating the attack on the Capitol: holding public hearings and inviting testimony from key players in the attack.
Four police officers who had defended the Capitol during the attack gave testimony during the committee's first hearing.
The committee is now looking to hear testimony from former White House staffers, rally organizers and members of Congress. It can also ask for and receive information from various government agencies and private organizations.
The panel has used its power to issue subpoenas to obtain information it deems vital to the investigation from former Trump administration officials, such as Meadows, Scavino and Patel, as well as organizations that planned the Jan. 6 rally.
Compelling requests
A subpoena is a legal order requiring a person to appear and testify or produce documents.
House Resolution 503 expressly authorizes the committee to issue and compel subpoenas for documents and testimony.
Historically, congressional committees have preferred to cooperate with the other branches of government to obtain information. But if a cooperative approach does not produce the information the committee needs, it can subpoena information and testimony from members of Congress, former White House staffers, social media companies and even the former president.
While in office, President Trump repeatedly 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 aides not to testify before or provide documents to the committee. He claims that such cooperation would violate executive privilege. He has also asserted executive privilege to prevent the release of records pertaining to his administration from the National Archives, even though the Biden administration has said that it does not object to the release of the information.
The law is less than clear about whether a former president can successfully claim executive privilege in the face of a congressional subpoena. The executive and legislative branches have historically preferred to avoid such confrontations and to negotiate the sharing of information.
As a result, federal courts have yet to determine the extent of the executive privilege retained by former presidents and when they can assert it.
Trump has extensively claimed executive privilege to cover not only matters of whether he himself can be forced to give evidence but also whether his former aides have to. In Bannon's case it is even more curious as he didn't work in the White House during the period in which the Jan. 6 committee is investigating.
Little support for claim
The resistance to the Jan. 6 subpoenas could lead the courts to revisit issues over executive privilege that have not been considered for 40 years.
In a 1977 decision, the Supreme Court held that former President Richard Nixon could claim executive privilege in challenging a federal law known as the Presidential Recordings and Materials Preservation Act. That law ensured government agencies and, ultimately, the public could have access to certain documents and tape recordings made during Nixon's presidency. Although the court allowed Nixon to make the executive privilege claim, 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 executive privilege.
Trump would not have a stronger claim. President Biden has already 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 keep them from being entered into evidence led Trump to formally claim that executive privilege should prevent their disclosure.
As to Trump's former aides, the Department of Justice has already informed Trump administration witnesses that it does not support any assertions of executive privilege on matters relating to efforts to overturn the 2020 presidential election.
Legal battles ahead?
In light of the Nixon case and the positions taken by the Biden administration, former Trump officials may face an uphill battle in arguing for executive privilege.
Meadows and Patel are in negotiations with the panel and may be trying to avoid further confrontation over the issue.
In the case of Bannon, the Jan. 6 committee's chair has said the panel will pursue criminal charges, with a vote expected to take place the week of Oct. 18.
This action shows a desire by the committee to flex its considerable power in requesting information, even if that 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.
image of U.S. President Donald Trump is displayed on a digital billboard in Times Square in New York on April 8, 2026.
Trump is stuck between two realities. Neither serves the American people
Normally, I worry that events may overtake a column. But not so with the Iran war.
I don’t worry about running afoul of a headline or Truth Social post from the president because what is said about the situation is no longer very relevant to the reality.
On April 8, Nick Catoggio, my Dispatch colleague, dubbed an earlier stoppage with Iran “Schrödinger’s ceasefire.” This was a reference to the famous thought experiment by the physicist Erwin Schrödinger, who was trying to explain the weirdness of “superpositionality” in quantum physics. A cat in a box is both dead and alive at the same time until you open the box. Schrödinger meant to illustrate the absurdity of the idea that particles aren’t any one thing, but a “cloud of probabilities.”
The Trump administration is stuck in a word cloud of probabilities of his own making. The war is over. The war is on. The war isn’t a war. We have a deal, but we don’t have a deal, but we’re about to have a deal. We destroyed Iran’s military. No, we left it intact. We want regime change. No we don’t. We already accomplished it. We “obliterated” Iran’s nuclear program a year ago. We had to go to war in February to prevent nuclear war. The Strait of Hormuz is open, closed, or something in-between. No deal without “unconditional surrender.” Let’s make a deal!
This everything-all-at-once vibe can be disorienting, particularly since most Americans didn’t have a war with Iran on their bingo cards until the shooting had already started. President Trump didn’t prepare the country or consult with Congress beforehand because he thought it would all be a smashing success in a matter of weeks.
The miscalculation that started it all: killing Iran’s Supreme Leader, Ayatollah Ali Khamenei, and much of Iran’s senior leadership, on the first day of the war. To “the great proud people of Iran, I say tonight that the hour of your freedom is at hand,” Trump announced on Feb. 28. “When we are finished, take over your government. It will be yours to take. This will be probably your only chance for generations.”
I support regime change in Iran and shed no tears for Khamenei or his goons. But when you start a war by killing the regime’s top leaders, it’s not unreasonable for the remaining ones to conclude that you really intend regime change.
Khamenei was a murderous fanatic, but he was a fairly cautious one. He liked to threaten closing the Strait of Hormuz or attacking our regional allies, but he was reluctant to actually do it, fearing it would invite a regime change war. The mullahs and IRGC goons believed, not unreasonably, that if they lost their grip on power, they’d be lynched by the Iranian people they’ve brutalized for decades.
By starting with a regime change war, Trump removed any reason for the regime not to go for broke. When you have nothing to lose — particularly when you are a millenarian religious fanatic — a Persian Alamo strategy makes a lot of sense.
So Iran closed the Strait of Hormuz and attacked its neighbors.
But it turns out this wasn’t the Alamo. In the contest of wills, Trump blinked. The Iranian regime’s tolerance for punishment proved — so far — to be greater than Trump’s and that of our gulf allies. Militarily we could finish the job, but that would require ground troops and much greater economic turmoil. In a conflict Trump launched unilaterally without the prior support of Congress, NATO or the American people, Trump doesn’t have the political capital for that.
But that’s only half the problem. Trump wants the war over, but he doesn’t want to pay — militarily, economically, politically — what that would cost. So he wants to make a deal that ends it. But there is no deal available that wouldn’t come at an equally undesirable cost. Any deal that looks like what President Obama struck with the Iranians would be too embarrassing to bear. But the Iranians are convinced that they can get just such a deal, and they’re willing to drag things out as long as it takes.
The result: Trump’s in a box of his own making. He thinks he can talk his way out by simply asserting a reality that doesn’t exist. When the financial markets get nervous, he announces a breakthrough that is, at best, a possibility. When the Iranians agree to a deal that looks similar to one Obama might negotiate, Trump goes back to his threats.
It can’t go on forever. But I’m sure it’ll last until long after this column is forgotten.
Jonah Goldberg is editor-in-chief of The Dispatch and the host of The Remnant podcast. His Twitter handle is @JonahDispatch.