The clock is ticking as the House select committee investigating the Jan. 6 attack continues to seek answers on how, exactly, thousands of people were able to lay siege to the Capitol that day with so little resistance.
The committee has spoken to more than 300 witnesses and does not appear anywhere near finished. Under pressure to get answers before the midterm elections potentially shift the balance of power, likely dissolving the committee, its members have shown no patience for dawdling. For failing to cooperate, the House voted to hold two allies of President Donald Trump in contempt of Congress: former Trump adviser Steve Bannon and former White House chief of staff Mark Meadows.
But what does it mean to be “in contempt of Congress”?
Defining ‘criminal contempt’
Here, in short, it means federal criminal charges. (Not always, though.)
The committee, and the larger House, is not charging Bannon and Meadows. Rather, the committee “adopted” resolutions that say Bannon and Meadows are not cooperating and deserve to be charged by the element of the justice system that has the power to do that ― the U.S. attorney for the District of Columbia. This is known as “criminal contempt.”
Earlier this year, the committee sent Bannon and Meadows separate subpoenas demanding information from them in the form of records from around the time of Jan. 6 and in the form of in-person testimony, where they would be forced to answer questions from committee members. Both ultimately refused.
The larger House agreed with the committee, and adopted resolutions recommending that each Trump ally face charges. House Speaker Nancy Pelosi then forwarded the resolutions on to the U.S. attorney for the District of Columbia, who decides whether or not to prosecute.
In Bannon’s case, the U.S. attorney charged him in mid-November with two counts of, essentially, not listening to Congress. (He surrendered and was released, pending trial.) Meadows waffled on his cooperation with the committee and only decided earlier this month that he would not do so; the U.S. attorney has not yet announced charges against him.
The specific charges against Bannon ― one for failing to produce documents, one for failing to appear for testimony ― could result in a fine between $100 and $1,000, and imprisonment “in a common jail” for between one month and one year.
This does not always work out so smoothly. The House has voted several times to hold someone in contempt for not cooperating in other investigations. But the Justice Department typically declines to prosecute if the individual is part of the current presidential administration, because the president has the power to assert executive privilege.
That was the case in 2007 and 2008, when the House tried unsuccessfully to pursue criminal contempt charges against a pair of Bush administration officials who would not comply with their respective subpoenas, citing executive privilege on behalf of their boss.
What else can Congress do?
Congress has a couple other things it can do to stand up for itself.
It’s worth noting that both the House and the Senate have the power to hold someone in “inherent contempt.” But it’s a pretty aggressive option. (In the ’70s, it was dubbed “unseemly.”)
Inherent contempt means ordering the chamber’s sergeant-at-arms to arrest witnesses who fail to cooperate with Congress ― essentially hauling a person in by force. It hasn’t been used since 1934, when an aviation lawyer refused to cooperate with a Senate investigation into federal airmail contracts.
More commonly, Congress can exercise a third option, that is holding someone in “civil contempt,” which basically means Congress is suing a witness in federal court.
Civil contempt cases typically move very slowly ― way too slowly for the Jan. 6 committee.
The House Ways and Means Committee, for example, began fighting the Trump administration in 2019 for access to his tax returns, and the ordeal is still playing out in the court system. A 2012 dispute between the House Oversight and Government Reform Committee and Eric Holder, who was then serving as President Barack Obama’s attorney general, took seven years to resolve.
(You can read a lot more about contempt of Congress in this 89-page report from the Congressional Research Service.)
Why is any of this important?
The Jan. 6 Capitol attack, obviously, represented an unprecedented threat to American democracy. Congress has “extremely broad powers of investigation,” Cornell government professor David Alexander Bateman told HuffPost, in large part to protect that democracy.
In letters to witnesses, Jan. 6 committee chairman Rep. Bennie Thompson (D-Miss.) has repeatedly included the following line: “The Select Committee is investigating the facts, circumstances, and causes of the January 6th attack and issues relating to the peaceful transfer of power in order to identify and evaluate lessons learned and to recommend to the House and its relevant committees corrective laws, policies, procedures, rules, or regulations.”
HuffPost asked Bateman what kinds of recommendations the committee could conceivably come up with.
“The real difficulty in coming up with a list is that the possibilities are nearly endless,” Bateman wrote in an email.
He gave numerous examples: Perhaps the investigation will net information about far-right extremists’ infiltration of police forces and the military, leading to laws intended to root them out. Perhaps it will lead to a new definition of what constitutes obstruction of federal proceedings. Perhaps it will lead to new laws surrounding campaign finance.
Importantly, Congress’ powers are broad enough that the Jan. 6 committee doesn’t necessarily need to come up with any legislation.
“If Congress were to hold an investigation into Jan. 6 for the sole and exclusive reason of contributing to public debate, without any goal of producing legislation, there would be clear constitutional and historical grounds for doing so,” Bateman said.
He went on: “Potentially more important than any legislative impact of the committee’s investigations will be its impact on public opinion ... and on the degree to which public officials and Trump’s co-conspirators believe that they are immune from punishment or likely to be protected by partisan allies in the judiciary. If organizing a coup against the constitutionally established Republic is perceived as having no real consequences ― and so far, that seems to be an accurate perception ― or is obscured to the public through prevarications and lies and the failure of the committee to penetrate through these, then it will happen again.”
The Jan. 6 committee already has its critics, some of whom highly doubt any real change or consequence will come out of its protracted legal battles and closed-door depositions.