Corrected version: "With all deliberate speed."

November 10, 2021

Note: this version of the newsletter corrects references to Rep. Louie Gohmert that should have been to Rep. Paul Gosar.

          The House Select Committee is making a valiant effort to identify those who planned the coup attempt that began in January. Though the answers to that question seem obvious, due process demands evidence before arriving at conclusions. The power of Congress to conduct investigations is derivative of the vesting of legislative authority in Congress by Article I, Section 8, Clause 18 of the Constitution. The power to investigate is as “penetrating and far-reaching as the potential power to enact [legislation] under the Constitution.” Learning how the ongoing coup attempt was hatched and which agencies, officers, and members within the executive and legislative branches have participated in the coup is clearly germane to potential legislative reforms to stop the ongoing coup or prevent future recurrences.

          Because the power of Congress to investigate is ancillary to its power to legislate, the ability of Congress to enforce compliance with its investigations is weak. Indeed, Congress must depend on the Department of Justice and federal courts to enforce congressional subpoenas through criminal contempt proceedings. Enforcement of such subpoenas by the DOJ is routine because the authority of Congress to issue subpoenas is beyond question and the proper scope of subpoenas is easily determined. The Supreme Court recently set forth clear rules for enforcing subpoenas that implicate “separation of powers” when presidential documents or privileges are involved.

          In short, everything relating to the validity and scope of subpoenas issued by the Special Committee is settled law. That is why the DOJ’s delay in indicting Bannon for criminal contempt is worrisome. No, more than worrisome. It is undermining the trust of the American people in the legitimacy and resolve of the Department of Justice.

          For readers who are DOJ alumni and just hurt themselves by rolling their eyes in reaction to the last sentence, let me give you your due. It has only been ten days since the House referred Bannon for consideration of criminal contempt. Former U.S. Attorney Joyce Vance makes the case that the modest delay (so far) in indicting Bannon should affirm our trust in the proper functioning of the DOJ. See Joyce Vance in MSNBC, “Steve Bannon's subpoena case is taking longer than we want it to. That's a good thing.” 

          Vance notes that Bannon has invoked executive privilege in refusing to appear. She writes that the prosecutor must evaluate Bannon’s legal defenses carefully before deciding whether to proceed. Vance writes,

          Although unlikely to succeed here, [Bannon’s] arguments must be thoroughly researched to develop the position the Justice Department will take at trial and on appeal. This is work that must be at least in progress and sufficiently far along to provide confidence in the affirmability of a conviction, before an indictment is sought. . . . Even with prosecutors and agents working at full speed, this process takes time.

          In the abstract, Vance’s arguments are unimpeachable and self-evident. In the context of an ongoing coup effort, they amount to an apology for the embarrassment that is Merrick Garland. Of course, prosecutors must initiate only those cases where they believe a jury would convict. But the issues presented by Bannon’s refusal to appear are not complicated. The question of whether he could properly invoke executive privilege might have given pause, but President Biden waived executive privilege as to the topics of Bannon’s testimony. Any delay at this point is justified only if it involves proofreading a lengthy indictment of Bannon.

          The most maddening part of the DOJ’s glacial pace in prosecuting the coup leaders (if at all) is that those leaders have incorporated the DOJ’s delay into their ongoing coup strategy. They are trying to “run out the clock” by exploiting the DOJ’s inability to react to a national emergency. The DOJ’s impartiality and deliberation have been converted from a “feature” into a “bug.” Surely, America has the ability to defend itself against an ongoing threat by reacting with all deliberate speed.

          The DOJ is the nation’s largest law firm. With sufficient resolve and urgency, it could have indicted Steve Bannon mere days after he defied a congressional subpoena. Would that have been a wise course of action? Yes! The Committee has issued a dozen other subpoenas to Trump associates. Because the DOJ has failed to act quickly against Bannon, the others will conclude that the best strategy is contumacy and delay. They will not be wrong in their analysis.

          It seems likely that the DOJ will eventually indict Bannon. But that delay— combined with the complete absence of any indictments of the coup leaders—has shaken the confidence of millions of Americans who understandably believe that Merrick Garland fails to appreciate the magnitude and urgency of the ongoing coup attempt. The times are looking for Merrick Garland, and he is missing in action.

          There is little we can do to directly urge Garland to act with greater urgency. But we can call the president and leaders in Congress to express the need for a sea-change at the DOJ. A good place to look for templates for calls to political leaders is at Jessica Craven’s Chop Wood, Carry Water. Check out her site, because it is relevant to the next story, as well. In the meantime, we should be thankful that the Special Committee understands the urgency of the threat posed by the coup leaders who have yet to be held to account. Let’s hope that the information developed by the Committee will be enough to slow the coup plotters until they can be prosecuted.

GOP Rep. Paul Gosar publishes anime video that depicts Gosar killing Rep. Alexandria Ocasio-Cortez and attacking President Biden.

          GOP Rep. Paul Gosar of Texas has published an anime video that depicts him killing Rep. Alexander Ocasio-Cortez and attacking President Biden. See WaPo, “Rep. Paul Gosar tweets altered anime video showing him killing Rep. Ocasio-Cortez and attacking President Biden.” If an employee did the same regarding a co-worker, he would be fired and reported to the police. Minority Leader Kevin McCarthy has done and will do nothing to punish Gosar. Speaker Pelosi has called for ethics and criminal Investigations into Gosar.

          While that is a start, it is not enough. Speaker Pelosi has the power to do more, including holding a vote to censure Gosar and remove him from committee assignments. There is no need for an investigation. We know the facts. Depicting the murder of a member of Congress and an attack on the President is utterly inconsistent with remaining as a member of Congress.

          Call Speaker Pelosi and urge her to take action. See the phone number and suggested word script in Jessica Craven’s Chop Wood, Carry Water.

The GOP’s bizarre response to the bipartisan infrastructure bill.

          President Biden’s infrastructure bill passed with modest bipartisan support in the House and Senate. The bill is already garnering praise from newspapers around the nation as states realize the benefits they will receive under the bill. Republicans are at a loss on how to react in the face of Democratic legislation that is widely popular. So, they (a) have claimed that former President Trump deserves partial credit for the infrastructure bill (which he actively lobbied against until the last moment, and (b) are attempting to strip committee assignments from their GOP colleagues in the House who voted for the infrastructure bill.

          These bizarre reactions show a party in the death throes of surrender to a despot who is driven by ego and revenge. That is not a healthy party. It may be able to exploit grievances for a while, but it is incapable of governing and is destined to fail. Read on.

Good news for Senator Maggie Hassan of New Hampshire

          Democratic Senator Maggie Hassan of New Hampshire was expected to face a tough challenge from Republican Governor Chris Sununu in 2022. But Sununu unexpectedly announced on Tuesday that he will not run against Hassan. Republicans had hoped to flip Hassan’s seat and Sununu’s exit is a blow. See The Hill, “Sununu exit underscores uncertain GOP path to gain Senate majority.” Republicans will work hard to find a replacement challenger, but it is unlikely that the GOP substitute will have the advantages that the popular Sununu would have brought to the race. That is welcome development. While Hassan’s seat is not safe, we should accept the good news today for what it is worth.

Concluding Thoughts.

          A note of clarification: Congress also has the power of “inherent contempt,” which allows it to arrest and jail recalcitrant witnesses (after a trial in the Senate). It is understandable that some Democrats want Congress to exercise inherent contempt against Bannon. But the inherent contempt power has been dormant for 85 years and should remain so, permanently. It is a very bad idea to allow Congress to jail citizens without judicial oversight.

          In little more than a week since the losses in Virginia, it is beginning to feel like the tide is turning. Americans are realizing that the infrastructure bill will have a positive impact on their lives, the economy, and the climate. We shouldn’t overstate the size of the effect, but we should at least acknowledge it. Let’s take good news where we can find it. And add to the list a federal court decision ordering the National Archives to provide the Special Committee with documents relating to January 6th that Trump is trying to conceal from public view!

          Talk to you tomorrow!