It was to be a critical week for the parliamentary committee investigating the Jan.6 assault on Capitol Hill, which focuses on the role played by ex-President Donald Trump. But expectations were dashed.
• Read also: Close Trump ally under threat of prosecution for obstructing congressional work
Steve Bannon, former adviser to the billionaire Republican, and ex-security adviser Kash Patel were to be heard on Thursday. Former chief of staff Mark Meadows and Dan Scavino, formerly responsible for social networks, were to be questioned the next day.
None, however, showed up, after Donald Trump invoked the executive’s right to keep certain information secret to prevent them from testifying, highlighting the limits of the investigative power of Congress when leaders refuse to be held accountable.
The House of Representatives committee of inquiry has repeatedly promised to be tough on people who do not respond to their summons, and announced that it has initiated legal action against Steve Bannon.
The commission has so far had only moderate success. Former Acting Justice Minister Jeffrey Rosen has notably testified to pressure Mr. Trump has exerted to involve his department in the former president’s disinformation campaign on electoral fraud.
But, critics say, Congress failed to stop Mr. Trump from obstructing his investigation.
“Slow-motion coup”
According to Fiona Hill, a research fellow at the Brookings Institution and former collaborator of the billionaire, her mistrust of Congress and her lies about electoral fraud amount to a “slow-motion coup”.
There are several legal avenues that Congress can take to thwart the Trump camp’s maneuvers. But the former reality TV star, twice indicted in Congress and twice acquitted, could use a number of tricks.
The Supreme Court has ruled that presidents have the right to keep certain documents and discussions confidential, and Donald Trump is far from the first to take advantage of this.
He first invoked these executive prerogatives in 2019, in order to deny Congress access to the entire Mueller report on Russian interference in the US election.
But it is usually the current tenant of the Oval Office who decides when this right applies, not his predecessor. However, Joe Biden has so far rejected Donald Trump’s claims.
This fight could take months, if not years, if the 75-year-old New Yorker is determined to oppose every subpoena, and go all the way to the Supreme Court if necessary.
Obstruction of the work of Congress
Historically, Congress has bypassed the courts by using “obstruction of the work of Congress” to enforce subpoenas, ordering the Sergeant-at-Arms to arrest and incarcerate recalcitrant witnesses.
This method has not been used against the executive for over 80 years.
Steve Bannon is being prosecuted on simpler criminal charges of obstructing the work of Congress under an 1857 law that makes it a federal felony punishable by jail time of up to 12 months.
It requires a House vote to bring the matter to the Department of Justice.
But in 1984, that ministry said it would not prosecute executive officials for obstructing the work of Congress when it is based on the executive’s right to keep certain information secret.
Even when this is not the case, the authorities rarely resort to it. Since 2008, the House has cited at least six current or former White House officials, but no action has been taken.
“Because of this discretion, the obstruction of the work of Congress has been rendered almost ineffective,” the Congressional Research Service said in a report last year.
Even if Justice Minister Merrick Garland approves the lawsuits, it could take months.
A third option is possible: to resort to civil proceedings before the courts.
Congress can ask a federal judge to enforce his subpoenas – witnesses who challenge them would obstruct the proper course of justice.
But time, again, is an issue here.