The House select committee investigating the 6 January attack on the Capitol is facing a race against time in 2022 as Trump and his allies seek to run out the clock with a barrage of delay tactics and lawsuits.
Republicans are widely expected to do well in this year’s midterm elections in November and, if they win control of the House, that would give them control to shut down the investigation that has proved politically and legally damaging to Trump and Republicans.
The select committee opened its investigative efforts into the 6 January insurrection, when a pro-Trump mob stormed the Capitol to stop the certification of Joe Biden’s election win, with a flurry of subpoenas to Trump officials to expedite the evidence-gathering process.
But aside from securing a trove of documents from Trump’s former White House chief of staff Mark Meadows, the select committee has found itself wading through molasses with Trump and other top administration aides seeking to delay the investigation by any means possible.
The former US president has attempted to block the select committee at every turn, instructing aides to defy subpoenas from the outset and, most recently, launching a last-ditch appeal to the supreme court to prevent the release of the most sensitive of White House records.
His aides are following Trump in lockstep as they attempt to shield themselves from the investigation, doing everything from filing frivolous lawsuits to stop the select committee obtaining call records to invoking the fifth amendment so as to not respond in depositions.
The efforts amount to a cynical ploy by Republicans to run out the clock until the midterms and use the election calendar to characterize the interim report, which the bipartisan select committee hopes to issue by the summer, as a political exercise to damage the GOP.
The select committee, sources close to the investigation say, is therefore hoping for a breakthrough with the supreme court, which experts believe will ensure the panel can access the Trump White House records over the former president’s objections about executive privilege.
“I think the supreme court is very unlikely to side with Trump, and part of it is the nature of executive privilege – it’s a power belonging to the President,” said Jonathan Shaub, a former DoJ office of legal counsel attorney and law professor at the University of Kentucky.
“It’s hard to see how a former president could exercise constitutional power under a theory where all the constitutional powers are vested in the current president, so I think Trump is very likely to lose or the court may not take the case,” Shaub said.
Members on the select committee note that several courts – the US district court and the US appeals court – have already ruled that Biden has the final say over which White House documents are subject to executive privilege, and that the panel has a legislative purpose.
A victory for the select committee at the supreme court is important, members believe, not only because it would give them access to the records Trump has fought so hard to keep hidden, but because it would supercharge the inquiry with crucial momentum.
The select committee got its first break when House investigators obtained from Meadows thousands of communications involving the White House, including a powerpoint detailing ways to stage a coup, and are hoping the supreme court can help to sustain their pace.
“It’s pretty clear that these documents are serious documents that shed light on the president’s activities on January 6 and that may be quite damaging for Trump,” said Kate Shaw, a former Obama White House counsel and now a professor at the Cardozo School of Law.
“They could make a difference to the record being compiled by the committee and thus they could give the process additional momentum,” Shaw said. “That’s probably why Trump is resisting their release as hard as he is.”
More generally, the select committee says they are unconcerned by attempts by Trump aides and political operatives to stymie the inquiry, since Democrats control Washington and the panel has an unprecedented carte blanche to upturn every inch the Trump administration.
“The legislative and executive branches are completely in agreement with each other, that this material is not privileged and needs to be turned over to Congress,” said congressman Jamie Raskin, a member of the select committee. “Things have been moving much more quickly.”
But the select committee acknowledges privately that they face a longer and more difficult slog with Trump aides and political operatives who are mounting legal challenges to everything from the panel’s attempts to compel production of call records and even testimony.
The trouble for the select committee, regardless of Democrats’ controlling the White House, Congress and the justice department, is that they are counting on the courts to deliver accountability for Trump officials unwilling to cooperate with the inquiry.
Yet Trump and his officials know that slow-moving cogs of justice have a history of doing nothing of the sort. House investigators only heard from former Trump White House counsel Don McGahn this past summer, years after the end of the special counsel investigation.
The House has not even been able to obtain Trump’s tax returns – something Democrats have been fighting to get access to since they took the majority in 2018 – after repeated appeals from the former president despite repeated defeats in court.
Trump and his aides insist they are not engaged in a ploy to stymie the investigation, though they admit to doing just that in private discussions, according to sources close to the former president.
When the select committee issued its first subpoenas to his former aides Mark Meadows, Dan Scavino, Steve Bannon and Kash Patel, Trump’s lawyers told their lawyers to defy the orders because it would likely serve to slow down the investigation, the sources said.
The result of Trump’s directive – first reported by the Guardian – is that Bannon and Meadows refused to appear for their depositions, and the select committee now may never hear their inside information about the Capitol attack after they were held in contempt of Congress.
It remains possible that Bannon and Meadows seek some kind of a plea deal with federal prosecutors that involves providing testimony to the select committee in exchange for no jail time, but the court hearing for Bannon, for instance, is scheduled late into the summer.
The reality for House investigators is that the cases are now in the hands of a justice department intent on proving it remains above the political fray after years of Trump’s interference at DoJ, and therefore indifferent to the time crunch felt by the 6 January committee.
The situation for the select committee may be even trickier with Republican members of Congress involved in 6 January, as they just need to stonewall the investigation only through the midterms, before which the panel hopes to release an interim report into their findings.
A spokesperson for the select committee declined to comment on the outlook for the investigation and their expectations for the supreme court hearing in the case against Trump, which the panel, cognizant of their limited timeframe, has asked to expedite.
Bennie Thompson, the chairman of the select committee, originally aimed to have the final report completed before the midterm elections, but the efforts by the most senior Trump officials to delay the investigation means he could need until the end of the year.
Either way, sources close to the investigation told the Guardian, the select committee is hoping that the supreme court will deliver the elusive Trump White House records – and that it could pave the way for the investigation to shift into yet another higher gear.