The January 6th Select Committee, the Hearings, and Subpoenas

Episode Notes

Transcript

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Speaker 1:  I hope this commission will look at all aspects of it including the capital police, including the encouragement of the Insurgence received, including the difficulty of getting the National Guard to defend our government and so on. 

Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams bringing you the latest legal news and observations with the leading experts in the legal profession. You’re listening to Legal Talk Network.

J. Craig Williams: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I’m Craig Williams coming to you from Southern California. I write a legal blog named May It Please The Court, and have two books out titled ‘How To Get Sued’ and ‘The Sled.’

After failing to form a bipartisan committee to investigate, Speaker of the House Nancy Pelosi formed a Select Committee to investigate the January 6th attack on the United States Capitol complex.  However, accusations of partisanship at the level of the committee, particularly after Speaker Pelosi eliminated House Minority leader McCarthy’s offered committee members, Representative Jim Banks of Indiana and Jim Jordan of Ohio.

Last week, police officers from the US Capitol Police and Washington D.C.’s Metropolitan Police Department appeared before the committee giving their accounts of what happened that day. Since the hearings have started, the subject of subpoenas has come up particularly for those who spoke with former President Trump that day. Representative Adam Kinzinger, one of the Republican committee members indicated that this committee would use its subpoena power stating, “I would expect to see a significant amount of subpoenas.”

Will this Select Committee use it subpoena power and how difficult it will be to get members of Congress and maybe even the former President to testify before the panel. Today on Lawyer 2 Lawyer, we’ll take a look at the creation of the house-Select Committee and the investigation of January 6th. We will discuss the hearings, the possibility of using subpoenas and where all of this is headed.

To do that, we have Professor David A. Super from Georgetown Law. David’s research focuses on administrative law, constitutional law, legislation, including the federal budget, local government law, public welfare law as well. Prior to entering into the legal academy, he served for several years as a general counsel for the Center on Budget and Policy Priorities and worked for the National Health Law Program and Community Legal Services in Philadelphia. Welcome to the show, David.

David A. Super: Thank you very much for having me.

J. Craig Williams: Well, David, today we’re talking about the January 6th Select Committee and a little bit about his background and the controversy that’s arisen from it. Can you give us a general idea about what house select committees are and what their range of powers are?

David A. Super: Sure. The House has select committees for quite a variety of things. It has a permanent one on intelligence, which supervises the CIA and the rest of the intelligence community and numerous ones that either accomplish a particular purpose or run for a period of time. What makes these committees select is that they are not permanent committees with particular legislative jurisdiction where all bills dealing with courts have to go through the Judiciary Committee. These are special committees to do some special purpose, often covering issues that involve many regular committees’ concerns.

J. Craig Williams: I’m old enough to remember the Watergate investigation. Was that a select committee?

David A. Super: It was a select committee in the Senate. The Sam Ervin Committee was a select committee. The hearings in the house were in front of a regular committee, the judiciary committee under Chairman Rodino. 

J. Craig Williams: Here we have Speaker Pelosi appointing the members of this committee and that’s the Speaker’s prerogative, right? 

David A. Super: Well, the committee was created by resolution of the house and that resolution was drafted to give the Speaker authority to appoint the members. It could have been set up in a different way, but I think anticipating the problems that they had with Representative McCarthy, they decided to give the Speaker the final authority. 

J. Craig Williams: What authority did the minority whip, Representative McCarthy, have in making the recommendations of, for example I was Jim Jordan and Jim Banks, that seemed to be the troublesome ones for Speaker Pelosi.

David A. Super: The resolution that created the special committee said that the speaker would appoint all of the members, but a number of them would be appointed after consultation with the ranking Republican in the house. She was obliged to consult with him. He was not obliged to speak to her at all. He chose to and he chose to make some recommendations. And she said, “I’ve consulted with you but these recommendations, or certain among them, are not acceptable to me.”

(00:05:06)

J. Craig Williams: As I go through law school and you go through the ethics class, it seems inappropriate if there are allegations against Representative Jordan and his participation in the Insurrection, assuming that it’s true or not. Does he have an ethical obligation to step aside?

David A. Super: The lawyers’ ethics rules are generally written with the courtroom as their contacts or their expectation and they don’t translate perfectly to a legislative setting but in general, yes. And it’s not just that there are accusations against him, but you generally are not supposed to participate even as a lawyer, much less as a judge, in a manner where you should be called as a witness. And it’s pretty clear that Representative Jordan knows things, whether they’re innocent things or not, that we are pertinent to the committee’s work and where the committee probably would want his testimony. By those standards, no, he would not have been an appropriate member of this committee. 

J. Craig Williams: Let’s talk about representative Banks. Are we on a slippery slope with him? Is it somewhat different because I think what his problem is he just spoke out and may not have directly been involved? I’m not exactly sure. 

David A. Super: It’s not clear what information is present about whom Representative Jordan had contact with principals on the day in question, perhaps the preceding days as well, so he pretty clearly would have been a witness. I’m less clear about Representative Banks and whether there is information that has not been made public that he would be a necessary witness as well. 

I would agree with you that if we are simply disqualifying people for bad attitudes that that’s not a useful practice and that’s not something that we usually apply to lawyers or even judges.

J. Craig Williams: Does the addition of Representatives Kinzinger and Cheney had any salve for the Republicans or is that just kind of rubbing salt into the wound given the position they’ve taken on the impeachment? 

David A. Super: Well, lawyers who serve in a judicial capacity, which arguably membership in this committee is, are supposed to have an open mind to the evidence that comes to them.  The positions that Representative Kinzinger and Cheney took were after listening to some evidence, I’m not aware of anything they’ve said that suggest they’re not prepared to listen to whatever other evidence comes before them and if they heard the right thing, to change their position accordingly. 

I don’t think that there’s anything about them that is disqualifying, but to the extent that the Republicans who are upset about Representative Jordan and Representative Banks’ exclusion from the committee are pro Trump Republicans who would like someone representing their wing of the party on the committee, then Representatives Cheney and Kinzinger don’t do anything for them. 

J. Craig Williams: Does Representative McCarthy as a whip leader have any ability to be able to kind of stymie what the commission is going to be doing?

David A. Super: Not really. The House is a very majoritarian body. If you have one more vote than the other people, you have complete control. The Senate is not that way at all, but in the House it is. Whatever the committee needs is probably something that the Democratic majority can provide for it. 

J. Craig Williams: What’s the committee been tasked with? What is it supposed to do? Obviously investigate the January 6th commission, is it going to issue a report? Does it have powers to make any changes? What can we expect? 

David A. Super: It does not have any powers to make changes directly. I think the members and leadership of the permanent committees would not have tolerated that. It does have the ability to make recommendations. It has a high enough profile that if its recommendations deal with things like the Capitol Police, I would imagine that those would have great weight. To the extent it deals with more controversial matters, the behavior of the military, the National Guard, the process of challenging elections and so on, I would not assume that its recommendations would necessarily get enacted. 

J. Craig Williams: Do you think that those kind of restrictions or kind of circumscription of the reality of it is going to affect the report that we see? 

David A. Super: I think the people are looking to this commission for a report, I think that it is an effort to consolidate the fact-finding in one place.  There are lots of committees that have jurisdiction over pieces of what happened and this is an effort to have it all happen in one place in part for the convenience of witnesses so they aren’t testifying all over Capitol Hill and mostly for the convenience of journalists and the public so that they can have one place to look at to find out what’s going on. Once its recommendations come out, I’m sure there’s no shortage of members who will write legislative proposals in the jurisdiction of the committees that they serve on. 

(00:10:35)

J. Craig Williams: You mentioned the Capitol police officers, we’ve already had, I think four of them come and testify. What’s your impression of what you’ve heard so far?

David A. Super: Very disturbing. Maybe I’m a Midwestern boy and maybe I was brought up in a strange way, but the idea that you would strike a police officer is something I still can’t wrap my head around. You can imagine police officers getting tired or working too long, but the fact police officers dealing with someone actually striking them repeatedly is inconceivable and the stories that they told of that and of the effect of that on their bodies and minds was startling to me and I suspect it was to a fair number the people that heard it. 

J. Craig Williams: And striking them with the American flag.

David A. Super: With the American flag. The American flag being used as a weapon against our police officers. 

J. Craig Williams: My mind is blown equally as well about that. We recently heard that two more officers have committed suicide from the Metropolitan Police Department bringing it to a total of four. How’s their story going to get told?

David A. Super: Well, those four officers’ story will not be told properly because the people that can tell it aren’t here anymore sadly. But I think that the officers who have testified and others who may testify give us some indication of that and perhaps their families will as well. But this is a shocking switch from what I think everyone assumes about the police. When something awful is happening, the rest of us are running away from it. The police are running towards it knowing that that their lives are in danger. And so, I think that this treatment of the police is shocking to them and to a lot of people and it’s a very hard thing to wrap your mind around when you’ve devoted your career to trying to keep people safe particularly when after it happened, so many people in high places who the police are told to respect are acting as if it was entirely appropriate somehow. 

J. Craig Williams: Yes, a loving visit. We’ve never had an Insurrection that a commission or committee or any part of our government is investigating. How do you wrap your arms around this? 

David A. Super: Well, the totality of it is very disturbing. What I hope the committee will do is not be daunted by the totality and will look into each of the individual pieces. That was what the 9/11 committee did and I think they did a pretty good job. They looked at the dirty mundane things like bad communications equipment, bad emergency response protocols, bad intelligence processing and so on. And I hope this commission will look at all aspects of it including the Capitol police, including the encouragement that the insurgents received, including the difficulty of getting the National Guard to defend our government and so on and that we will get an understanding built on detail when most of us from reading media cats, have an overall view, but don’t Know where everything went wrong. 

J. Craig Williams: And there’s a deep fundamental core that we have to look at as well here. These people were marching on the Capitol to stop the certification of the election. And that’s what I understood and that’s what I think some of the testimony has been. You’re threatening Congressmen, you’re threatening to hang the Vice President, you’re threatening to stop the role of democracy in certifying an election. How is that aspect beyond what we’ve done with the police and the kind of logistical issues that we have that side? We have a substantive side here as well. 

David A. Super: Well, we do. And I think from the perspective of the Insurrectionists, the people who broke in, they would argue that taking away their democracy by stealing an election is justification for what they’ve done. That’s not correct, but that’s a belief they had and that’s a belief that some people can relate to, which means that making a false charge of a stolen election is a serious matter just as if I were to tell you that someone had just attacked one of your loved ones. That’s not an innocent thing for me to say because it might cause you to take violent action against this person who was committing these harms. So I think it suggests that alleging election fraud without evidence is not mere politics as usual, it’s not just the way things are but it is something that can lead people to believe that they must take the law into their own hands and commit violence against our highest officials. 

J. Craig Williams: One of the Capitol police officers said, “A hitman sent them. I want you to find out who that hitman is.” How far is this liability going to go? 

David A. Super: I think it is likely to go to a very close examination of the President’s role in a very close examination of his top aide’s role. We know from recent disclosures that the President effectively ordered his top officials at the justice department to declare the election was corrupt and they committed what amounted to insubordination in refusing to do so because there was no evidence of that. We don’t know how much the President may have connected with or been aware of the Insurrectionists but there will certainly be examination there. So at least that the President was not involved. There will certainly be inquiries to whether people close to him that the Insurrectionists might have thought were speaking for him were involved and either aware of or facilitating what they did. 

J. Craig Williams: Well, we have Roger Stone with a cadre of Proud Boys that very morning. We have President Trump himself saying, “You fight like hell.” How do those things play into this tension that exists between the Republicans at this point saying, “Hands up in the air, we didn’t have anything to do with it. We didn’t expect this, but yet there are indications that perhaps that was the case.”

David A. Super: Well, those parts are already well known, but there’s a lot of things we don’t know very much about it all. There was enormous difficulty in getting the National Guard or the Army to help defend the Capitol. We know that Governor Hogan of Maryland immediately upon hearing about this wanted to send the Maryland National Guard to defend the Capitol and was unable to do. We don’t understand why and I think it is those details, which may seem mundane that will give us a better sense as to whether this was just incompetence or whether there was a deliberate effect of letting things take their course and perhaps hoping that the insurrectionists would be more successful than they were. 

J. Craig Williams: We’ve heard four high-profile pieces of testimony so far. I think that’s been the extent of it. The committee has the power to issue subpoenas. Who do you expect to see subpoenaed? 

David A. Super: I expect them to subpoena the senior officials of the Defense Department who were on duty on and leading up to January 6th. I expect them to subpoena the President’s top aides. I expect them to subpoena Representative McCarthy and others who had contact with the President on and leading up to January 6th to try to determine what role they had. I would expect they would also subpoena the members of Congress who are alleged to have provided tours of the Capitol to the people who were there to later became insurrectionists to determine what they knew and when they were aware of what these people had in mind. 

I don’t think the testimony from all of these people will meet the expectations of many people that are following it in the media. Often, when you dig into things that look suspicious, there are legitimate explanations but these are the sorts of things that they’re going to look for. 

J. Craig Williams: So the panel can fully expect their fellow members of Congress to come and testify? 

David A. Super: Yes and it’s I think something that people may not realize if we had a 9/11 style commission of the kind that the house Democrats or Republicans initially agreed to and then the Republicans backed off on, it would not be able to bring in members of Congress against their will. The speech and debate clause in the Constitution says that the actions of members of Congress may be examined only by the Congress itself. This committee is the Congress itself, it can bring in members and it could in theory, suspend or expel members who have acted against their oath to uphold the Constitution, a separate committee or a court could not do that. 

(00:20:24)

J. Craig Williams: You mentioned earlier that the interaction between President Trump and the Department of Justice and Rosen. Acting AG Rosen refusing to capitulate and say that the election was corrupt amounted to insubordination. Should we be considering the Justice Department in a different branch of government or give it some more independence than it currently has? 

David A. Super: That’s very difficult to pull off. The Supreme Court has allowed, you call them secondary functions of the executive branch to exist in independent agencies, the Securities Exchange Commission, National Labor Relations Board and so on, but I don’t think something as central as the administration of justice could be put off in a separate body like that short of a constitutional amendment. I think we do need to have stronger rules about transparency, perhaps an obligation on anyone in a senior justice department position to report any efforts from the White House to corrupt either their execution of their responsibilities or their criminal prosecutions, anything like that so that we not be finding out about that phone call six months later and after all the relevant parties have left office. 

J. Craig Williams: Great and we really have no way of ensuring that there is any kind of independence other than something like that because otherwise, President Trump just fires them until he finds somebody who will follow his instructions. 

David A. Super: Well, we have that precedent in the Watergate period when President Nixon wanted to fire the special prosecutor Mr. Cox because he was getting too close to sensitive areas and went through his attorney general and his deputy attorney general before finally the solicitor general was willing to fire Mr. Cox. In this case, there reportedly, I don’t know about this directly, but there reportedly was an assistant attorney general who was willing to follow through with the President’s direction and the President was contemplating firing the attorney general and the deputy attorney general and promoting this assistant AG to become acting attorney general to carry out his agenda. We’re told that the rest of the senior staff of the justice department threatened to quit and the President backed down. President I believe doesn’t have to back down and one can imagine that if there was a next time that the President in President Trump’s position might decide not to care and not to back down and could indeed put someone who is loyal to him rather than to the Constitution into that position.

J. Craig Williams: Right. The article that I read that was the person that actually drafted the letter that said that the election was corrupt and presented it to Rosen and asked him to sign it. So certainly, somebody was out there willing to get into the position of AG as you say, kind of a scary thought. 

David A. Super: It is and I think under the Constitution, that probably can’t be insulated from the President completely, but we can certainly demand more transparency. In many ways, I don’t know much about Mr. Rosen at all, but he obviously seems to have integrity and we were very lucky that with all the people stepping out of positions that the acting mantle fell on someone who was not willing to betray yourself.

J. Craig Williams: Right. Well, let’s take a look at what the committee can do with respect to the White House. Obviously, I think the chairman is Representative Thompson. They’re going to be seeking telephone, visitor logs, communications, emails, so forth. How far can they delve into the White House? 

David A. Super: Well, the White House has broad ability to protect itself through executive privilege but there’s no indication that President Biden is inclined to assert that for matters relating to the January 6th Insurrection or perhaps to the election challenge at all. President Trump I saw, his lawyer’s claiming that that privilege belongs to the Office of the President, not any particular President, I think that’s true, but the Office of the President is held at any given time by one person and that person today is Joe Biden. I think that President Biden is likely to waive that privilege for things relating to the Insurrection, I would suspect, because he’s a longtime member of Washington government that he would not waive the privilege for things unrelated to January 6th. I think he believes in the institutions and would fight for the presidency even against a Congress of his own party, but on matters relating to January 6th, that was not a legitimate government function. I don’t think he would want to shield it.

(00:25:33)

J. Craig Williams: Does former President Trump at this point had any argument at all that that privilege is actually his because it occurred during his administration? 

David A. Super: No. That privilege actually, I agree with that line from his lawyer’s letter, it belongs to the Office of the President and not to him as a person. I don’t see how it is. It’s not like he was speaking with his pastor and has the privilege that we all have speaking to our clergy, he has that privilege to protect the executive branch making legitimate decisions, very, very hard for outsiders to say what’s legitimate and what’s not, but when the current President says, “This is not necessary to protect. I don’t want people nosing in on my decisions about when to go to war or when to veto a bill but this has nothing to do with the legitimate functions of the office and so, I don’t need to assert privilege on.” I think that’s the end of it.

J. Craig Williams: Right, makes sense. Here’s the penultimate question. Any criminal charges do you think we’ll see out of this? 

David A. Super: I don’t think this committee is going to get very close to that. There are a lot of criminal investigations on their way, I suspect some we don’t even know about at this point and those could well get the something, but the only way I would imagine this committee would be drawn into that is if people perjure themselves in front of it, which is certainly possible, but I don’t think they will be likely doing referrals to prosecutors because frankly, I think, the prosecutors are way ahead of them. 

J. Craig Williams: And it would seem that the best benefit would be the existence of the report is potential evidence or avenues for discovery for the AG who is currently prosecuting the Insurrectionists. 

David A. Super: Yes, although the attorney general and the US attorneys and state prosecutors in some places have access to grand juries and other ways of preserving evidence and compelling evidence. I actually don’t think they’re going to find the work of the committee particularly useful unless we get into perjury.

J. Craig Williams: David, it looks like we just about reached the end of our program so I’d like to take this opportunity to invite you to share your final thoughts as well as your contact information for our listeners to reach out to.

David A. Super: Certainly. I think this committee’s main function is going to be bringing together all in one place a lot of the information that we don’t have about what led up to the Insurrection and who may have been involved in it and who may have been less than faithful to their oath to uphold the Constitution. I think this committee is going to be more effective than any other body in figuring out Congressional involvement in the Insurrection, if any, and they may be useful in looking into some of the important departments of government such as defense and justice and others perhaps. 

My contact information is simply [email protected] and I’d be happy to hear from your listeners. 

J. Craig Williams: Great. Well, thank you very much and as we wrap up, I’d like to thank our guest, Professor David Super of Georgetown Law for joining us today. It was a pleasure having you on the show.

David A. Super: Thank you very much for having me. I enjoyed it.

J. Craig Williams: And for our listeners, if you like what you heard today, please write us on Apple Podcast, your favorite podcasting app. You can also visit us at legaltalknetwork.com where you can sign up for our newsletter. I’m Craig Williams. Thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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Podcast transcription by Tech-Synergy.com