The US court system is creating some accountability for hundreds of the people who attended the January 6 rally, which turned into the insurrection at the US Capitol, by charging them with criminal offenses and in some cases sending them to jail.
The political system reveals a much less clear effort to hold accountable the people who instigated the whole event.
Democratic lawmakers are set with a Thursday vote to hold former President Donald Trump’s ex-adviser Steve Bannon in criminal contempt of Congress because he won’t comply with a subpoena in their January 6 investigation. Trump is also ignoring Congress by asking the National Archives to squash congressional requests for documents related to the insurrection.
What comes after the contempt vote? It is entirely unclear whether that contempt vote will lead to any action by the Justice Department to pursue charges.
Related: What is criminal contempt?
There would be some irony in a Democratic administration not pursuing criminal contempt charges brought by a Democratic Congress.
Look for some clarity when Attorney General Merrick Garland testifies at an oversight hearing in front of the House Judiciary Committee on Thursday.
Garland has, on the one hand, promised to keep politics out of the Justice Department. He has, on the other, a duty to uphold the law, including Congress’ right to compel testimony.
The root is a lack of respect for Congress. The unwillingness of Trump aides like Dan Scavino and others who are just simpatico with Trump like Bannon is a problem for the fact-finding element of January 6 investigation.
That they feel entitled to ignore congressional subpoenas is a much deeper problem – a glitch in the system of checks an balances.
What comes next? A slow court fight.
Related: Trump’s best legal shot at blocking the release of his January 6 docs
A system of checks and balances is being ignored. The January 6 investigation is slowly uncovering, for the umpteenth time of the Trump era, one of the major flaws – frustration might be a better word – with the US system of government.
There should be checks and balances between the branches of government, which are meant to share power.
Congress legislates. The President executes. The courts settle disputes.
They’re interdependent and yet distinct. It’s meant to be an elegant knot.
Ticking clock. Congress, which is the branch of government most accountable to voters, faces an election in a little more than a year, which seems like an eternity but is perhaps not nearly enough time to force Trump or his cronies to cooperate using the courts.
Beyond the subpoena fight and the contempt question is something even more central for a modern society that prides itself as a free and open democracy that does not make political prisoners.
What is the appropriate accountability for a President who tried to stage a coup? Trump has already faced informal accountability. His coup failed. He’s been driven off social media.
He avoided formal accountability. Trump’s party saved him conviction in an impeachment trial, which means he can run for President again. The last laugh may be on the Republicans who didn’t end his career when they had the chance if, as expected, he does run again in 2024.
He has claimed ignorance of the insurrection, something his supporters can cling to. But hiding his papers and testimony of his enablers should undermine him.
“Mr. Bannon’s and Mr. Trump’s privilege arguments do appear to reveal one thing, however: they suggest that President Trump was personally involved in the planning and execution of January 6th,” said Rep. Liz Cheney, one of a handful of House Republicans who supported Trump’s impeachment and broke with the vast majority of Republicans to take part in the January 6 investigation.
“And we will get to the bottom of that,” she added as the January 6 committee pushed the contempt question to the full Congress.
What comes after the committee? While the necessity of getting to the bottom of exactly what happened seems essential, the end game is not at all clear.
There is the promise of politically damaging Trump as he plots another run for the White House.
History as a guide. In fact, while trying to overturn an election is a crime against democracy, there’s a long history of the US not punishing political criminals in a way that Trump haters would be satisfied with.
Aaron Burr escaped after killing Alexander Hamilton in the famous duel. Out in the western wilderness, he encouraged western states to leave the union and join him in an effort to take land from Spain with help fro England. With some help from Chief Justice John Marshall, Burr beat the treason rap.
Richard Nixon escaped formal accountability after Watergate, but he found himself in a wilderness of his own. Many of his enablers were charged with crimes, in particular after his White House counsel, John Dean, turned on his boss – at a hearing on Capitol Hill.
Trump’s aides aren’t likely to do that since Bannon, and perhaps Scavino, are simply ignoring subpoenas.
Trump is no Nixon. Nixon resigned after he lost the faith of senators in his party. Trump kept Republicans in line to protect him from impeachment. He still does.
Look at his embrace by longtime Republicans formerly known for their backbone, like Sen. Charles Grassley, who admitted perhaps too much when he said he wouldn’t be very smart to dismiss the endorsement of a person as popular in the party as the former President.
Trump’s influence also wanes. Republicans are looking to win the governor’s race in Virginia next month. The GOP candidate Glenn Youngkin has offered some coded references to his support for “election integrity,” but contra to the idea that Trump controls the party, he has largely kept the former President’s name out of speeches.
The current conventional wisdom is that if this election in Virginia turns on angry parents frustrated with how Covid-19 has been handled in schools, Younkin has a good shot at upsetting Democratic former Gov. Terry McAuliffe. If it’s still about the Trump path the GOP has been on, he’ll lose.
Similarly, Sen. Mitch McConnell, the top Republican in the Senate, made very clear – or as clear as he’s likely to make it – that GOP candidates should be focusing on their criticisms of the Biden administration and not their defense of the Trump election fantasy. At least, that’s what I think McConnell said. Here are his actual words:
Asked by CNN’s Manu Raju whether he was comfortable with candidates embracing Trump, McConnell said this:
“I do think we need to be thinking about the future and not the past. I think the American people are focusing on this administration, what it’s doing to the country, and it’s my hope the ’22 election will be a referendum on the performance of the current administration, not a rehash of suggestions about what may have happened in 2020.”
(Note: The vast majority of Republicans have either endorsed, failed to condemn, or developed amnesia about Trump’s election fantasies.)
That they could allow, abet or accept the effort to overthrow the election should, you’d think, be disqualifying. But that’s not the way any of this works. We’re in a situation where history suggests a majority of Americans will vote in 2022 in favor of a political party that tried to undermine an election.
While the voters wouldn’t specifically be voting for Trump in 2022, the end result of a Republican victory is that the House investigation would surely go away.
