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.
Children watch a July Fourth Parade along the Walkway of Heroes and Independence Avenue on July 04, 2026 in Tappan, New York.
The Great American Grumpfest
Our nation’s 250th birthday party didn’t feel especially patriotic and wasn’t as much fun as the 200th anniversary was.
President Trump, who did his best to co-opt our holiday for his personal aggrandizement, was a major reason. The party he threw in Washington, D.C., was crankier than uplifting, and less about celebrating our shared past and a promising future than about reminding us how far we have strayed from our founders’ plan to create a republic that future Americans would keep in good working order.
Credit Trump this much. He has a singular gift for picking at scabs that other politicians would rather ignore and pushing us into reckonings we don’t need.
The thing is, Americans have seen all this before. Sometimes the makeover we were encouraged to undertake was more conservative, sometimes more liberal. Whatever direction we were pushing, however, the reckoning we had in mind this time had to be more forthright and the conclusion more definitive than it was the last time.
Our current discontents, the ones behind the reckoning President Trump has been trying to inspire, are not trivial. Included among them are immigration, birthright citizenship, exploding healthcare costs, election rigging, a gag-inducing national debt, how we educate our children, too many genders, racial differences we can’t move past, a lopsided economy that favors more well-off Americans, and historic levels of political corruption and graft. Add to these the several foreign adventures he has pushed us into or is anxious to undertake, and you have the makings of a national headache the likes of which we haven’t had in half a century.
All the elbow-throwing and overheated rhetoric we’re using today have begun to look almost normal in all the ways that bickering neighbors and feuding family members appear normal. But they have also made us look mean-spirited and have portrayed our differences as irreconcilable. To ourselves, of course, but also to many people outside the United States who might be forgiven for turning their heads and not looking at the national car wreck we Americans show no interest in avoiding.
The good news, as I suggested above, is that Americans have had a great deal of practice dealing with challenges and national car wrecks like these.
This essay begins to lay out the reasons why.
By way of illustration, we have our seemingly insatiable demand for more bad news about race in America.
Sixty years after being released from the legal constrictions that bedeviled both white and black Americans, many white people have come to believe the color that used to make them unassailable is now a sign of a moral inferiority born of a racial animus they can never wash off. Many black people, on the other hand, are insisting that America is as hopelessly stacked against them as the formerly unassailable white people’s ancestors used to tell their black ones.
The result is that many people today are buying into racist nightmares and mumbo jumbo that their black and white ancestors worked hard and effectively to put in each other’s heads.
This might be dismissed as crazy behavior if it weren’t so important to rituals Americans have long used to express their deepest fears about each other while figuring out what move they can make that won’t end with their world crashing down on everybody’s head.
Unfortunately, the kind of cultural sleight of hand we have used to ramp up our racial differences has been appropriated by people who have many other cultural fears and unresolved differences with each other. Their clumsy but culturally prescribed missteps are making all these other issues look as irremediable as our racial problems.
A good place to start an answer to how we back away from ledges is Alexis de Tocqueville’s writing on early-19th-century American democracy. He had an optimistic take on Americans’ unscripted displays of public bravado, recrimination, and payback.
For him, these were occasions when people tried to mitigate the effects of the unfair hand they were dealing someone else or had themselves been dealt by behaving in ways quite at odds with how they would otherwise be expected to act. These inversions of what Tocqueville called “the natural order of conscience” presented themselves as a loud but culturally muted challenge to the hypocrisies that people had built into the world they’d made together.
One of his favorite illustrations of early-American hypocrisy involved slave masters sleeping with their less-than-worthy slaves. To the best of my knowledge, he didn’t pick up on all the ways that slaves messed with their owners. Their well-chronicled and quiet resistance showed that even severely ill-treated people can exercise more control over their lives than outsiders appreciate.
Be that as it may, such inversions of a people’s “natural order of conscience” make a good public show of them wrestling with demons they can’t or may not want to shake off, but in any case, are nowhere close to figuring out how to cast out.
Implicit in these disruptions was the discomforting idea that people might flip the entire script and turn the world on its head in more permanent ways. That kind of flipping worked out better for us in our revolution against England than in our Civil War. These events taught us the value of stepping back from historically unprecedented ledges.
Americans of late have been giving loud expression to a long list of things they don’t like about each other and the last makeover they started but didn’t finish a half-century ago. The outcome of our fights today will be as revealing as they are embarrassing to everyone who imagined they could recast our country in a way that privileged their favorite kind of Americans.
Their disappointment with the accommodations they strike will be palpable, but the middling results they achieve with all their pushing and shoving won’t be anything they can’t live with.
Anthropologists who have written about such moments in other cultures less “advanced” than our own show that people find ways to work around their seemingly irreconcilable differences without ever fully resolving them. Indeed, the patches and repairs people make have the unheralded effect of reinforcing rather than undermining the legitimacy of the practices and values they thought were fundamentally flawed.
For example…
White guilt and black pessimism do more good than putting cash into the pockets of professional shamers and handwringers. They give the rest of us who don’t feel guilty or powerless more time to make the world less racially unequal. Good news.
Regarding illegal immigration, the entrance requirements for future immigrants will remain stringent. Americans will applaud the continued detention and deportation of the few illegal immigrants who commit serious crimes. Good news.
All the people who came to the United States without being legally vetted and were locked up for a time will be released in numbers small enough to avoid serious media attention. Along with the several million other good people who snuck in but avoided capture, the former detainees will go to school, find gainful employment, pay their taxes, and stay out of trouble. Many will eventually become citizens. Good news.
Investigations into election tampering and Donald Trump’s 2020 presidential loss will come to an unceremonious conclusion the day after his second term ends. Many Americans will grumble about this, but there will also be some quiet partying, too. Good and bad news.
Congressional hearings into all the grifting accomplished by people tied to the Trump administration will end without anyone having to pay a dime back to the American taxpayers. Bad news, we’ll learn to live with.
New laws and regulations will be created in the hope that the kind of corruption practiced by President Trump will not be repeated for another 250 years. Good news, I hope we’ll live long enough to enjoy.
Show trials for people who allegedly vandalized the Lincoln Memorial Reflecting Pool, if they happen, will get big television viewer ratings. Good news.
Trials for pardoned Capitol insurrectionists who committed serious crimes after their release should get more attention, but won’t. Bad news.
We will continue to hear nothing from most of the people who were pardoned for crimes they committed in the insurrection at the Capitol on January 6, 2021. They will keep their mouths shut and their heads down for the rest of their life. Good news.
The gold-gilded ornaments that Donald Trump had plastered all over the White House will be shipped to Mar-a-Lago, where the former president will sell them on eBay. Fun news.
American taxpayers end up paying for most of the new East Wing, the removal of the miniature gladiatorial arena that was built behind the White House, and the restoration of the White House rose garden. Bad news.
The Triumphal Arch was never built. Good news.
Trad wives and gay couples raise perfectly lovely children. Good but unsurprising news.
Trans men and women learn that most Americans can’t figure out who they used to be. No one gives a second thought to their use of “family bathrooms” or “unisex bathrooms” in public settings, businesses, and schools. Communities will sponsor athletic teams that have trans boys and girls just to show they can. Good news.
Budget deficits will be kicked down the road for someone else’s children to pay down. Bad news.
Federal agencies that had their budgets and employee ranks slashed during President Trump’s second term are getting some of the money and lost positions back. Good news.
Elite universities will buy their way out of DEI purgatory by competing for conservative scholars whose inflated salaries dwarf those of their liberal colleagues, who will think about suing their institutions for reverse discrimination but won’t be able to figure out who would pay for it or care. More fun news.
Okay. I’ve probably missed some ways that Americans will step back from the ledges they have been making noises about leaping off. But to the extent that my predictions pan out, the best and most important moral of the stories about us stepping away is this: everything we lost and took back, or had returned to us, will have happened without our government collapsing, civic traditions crumbling, or our people beating each other up.
The reason why is that the differences Americans have with each other really weren’t as irreconcilable as we made them out to be. The empty-sounding bromide that Americans have more that unites us than divides us turns out to be true, not just metaphorically but in fact.
Now that is really something to celebrate.
Daniel J. Monti (danieljmonti.com) is Professor of Sociology at Saint Louis University and the author of American Democracy and Disconsent: Liberalism and Illiberalism in Ferguson, Charlottesville, Black Lives Matter, and the Capitol Insurrection.