Reverse past mistakes on subpoenas

York Dispatch editorial board
Supporters of US President Donald Trump clash with the US Capitol police during a riot at the US Capitol on Jan. 6, 2021, in Washington, DC.  (Alex Edelman/AFP/Getty Images/TNS)

The House select committee investigating the deadly Jan. 6 attack on the U.S. Capitol opened its hearings late last month with compelling, emotional testimony.

Four law enforcement officers who defended the Capitol that day recounted in gripping detail what they heard, saw and suffered at the hands of supporters of former President Donald Trump. It was a visceral recounting of an unprecedented and, until that afternoon, unthinkable riot within the halls of the U.S. seat of government, made all the more gut-wrenching by accompanying video of the anger-fueled violence.

The insurrectionist attack was aimed at disrupting the certification of President-elect Joe Biden (if not something more sinister; there were calls to hang Vice President Mike Pence). That this was anything less than a full-out rejection of democracy can be denied only by the blind or blindly partisan among us.

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Add to that the New York Times’ explosive July 31 report that Trump urged his Department of Justice to declare the presidential election corrupt and “leave the rest to me” and there is more than ample reason to suspect America’s 244-year-old democracy was under legitimate attack.

All of which makes the work of the bipartisan House select committee crucial — not only to get to the bottom of exactly how this coordinated attack was organized and carried out, and by whom, but to ensure such an affront to representative government never happens again.

To quote the select committee’s chair, House Homeland Security Committee Chairman Bennie Thompson, “We have to get it right.”

Doing so will mean correcting something Democrats got very wrong during investigations into previous Trump administration misdoings: Enforcing their subpoenas. 

Trump and his White House operated as if the rules didn’t apply to them and it was infuriating. But just as frustrating was the way this posture was normalized and enabled, not just by rank-and-file Republicans who placed allegiance to party over their oath of office, but by Democratic officials who failed to challenge the abuses.

Case in point: Kellyanne Conway, counselor to President Trump. She violated the Hatch Act, which bars federal officials from using their position to meddle in electoral politics, multiple times. The abuses were so blatant that the Office of Special Counsel — run by a Trump appointee, no less — recommended she be removed from federal office. But as we all know, if you were good with Trump, you were good.

Enter the House Oversight Committee and Chairman Elijah Cummings, who issued a congressional subpoena to Conway to appear at a public hearing investigating her actions. She refused, with Trump’s blessing. The House did nothing.

The administration responded similarly during the president’s first impeachment trial, all but absolutely stonewalling congressional subpoenas for records and testimony. Those few who bucked the White House and put duty to country above deference to the Oval Office, such as Lt. Col. Alexander Vindman, were rewarded with presidential wrath and short-circuited careers.

All of which is bad enough. Even worse, House Intelligence Committee Chairman Adam Schiff (a member of the current select committee) opted not to challenge the White House’s refusal to submit to subpoenas, dismissing it as “a lengthy game of rope-a-dope in the courts.”

Maybe so, but one worth playing. The Intelligence Committee could have carried out its investigation without awaiting a legal decision on the subpoenas (which it did anyway) while still carrying forth those challenges.

Success in the courts may have come too late to influence the impeachment outcome, but it could have established useful clarity in carrying out the Jan. 6 probe. Instead, it did the opposite: Enshrining White House refusal to submit to congressional subpoenas as an acceptable response.

That unfortunate miscalculation by Schiff and his team may complicate the current House select committee’s objective to “get it right.”

The committee can’t repeat this mistake. It must enforce, through the courts if necessary, the preeminence of congressional subpoenas. Anything less threatens not only its investigation, but Congress’s oversight authority regarding the executive branch.