Republicans Don’t Have To Win Jan. 6 Subpoena Challenges To Run Down The Clock
A judge dismissed the RNC’s claims against the Jan. 6 committee, but paused the effect of his ruling while the GOP pursues an appeal.
WASHINGTON — Earlier this week, a federal judge issued a 53-page, full-throated rejection of the Republican National Committee’s legal challenges to a subpoena issued by the congressional committee investigating the Jan. 6 attack.
But if Republicans’ goal was to stymie investigators from getting the information at the heart of the subpoena — records about how the RNC and the Trump campaign used mass emails to promote false claims about the election being stolen — it wasn’t a total loss. US District Judge Timothy Kelly ordered the case dismissed, but he delayed that decision from taking effect to give the RNC a chance to appeal. That process could push out the timeline for the Jan. 6 committee to actually get the documents it wants by weeks or months.
Former president Donald Trump, former administration officials, high-profile pro-Trump figures, and other individuals with some connection to the events of Jan. 6 have filed more than 20 lawsuits challenging the committee’s demands for documents and testimony. Most of these cases are pending; in the few instances where judges have taken action, none have stepped in to block the committee’s work.
The sheer number of Jan. 6 subpoena fights and other legal action challenging the committee’s work is unusual, involving a broad array of actors in Trump’s orbit. In most cases, the challengers haven’t asked judges for immediate, emergency orders to block subpoenas, which means they’re not moving on an expedited track. Civil claims can take months or even years to play out on a typical schedule.
At a minimum, these cases have made the committee’s original deadlines for securing documents and testimony from key witnesses null. In cases contesting subpoenas to telecommunications companies for phone records, providers are waiting on a final resolution from judges before turning over materials to the committee. How much these delays will affect the final timeline and scope of the investigation — and whether the RNC or any other party that’s gone to court to stop the committee from getting documents or compelling testimony can win on the law — remains to be seen.
The committee has interviewed hundreds of witnesses, received reams of documents, and plans to hold public hearings in June, a significant milestone; the first and only public hearing in July 2021 featured emotional testimony from police officers who were injured defending the Capitol against the mob. In January, Rep. Bennie Thompson, the Democratic chair of the committee, said they planned to produce a final report by the fall.
With those self-imposed benchmarks in mind, the committee has urged judges to resolve these cases quickly, noting that it doesn’t have an indefinite mandate. If Republicans retake control of the House in the midterm elections this fall, they could choose not to continue the committee’s work come January 2023.
“Prompt resolution of this case is required for the Select Committee to have enough time to investigate fully the matters addressed by the subpoenas and to propose — and for Congress to pass — any legislation that it may deem appropriate in response,” lawyers for the committee wrote last month in a subpoena challenge filed by Trump’s former chief of staff Mark Meadows. The case revolves around subpoenas seeking documents and testimony from Meadows and his phone records from Verizon.
Court losses for Trump and his allies have helped the committee secure a few categories of contested records. These orders have come from judges appointed by Democrats and Republicans, including Trump.
Trump lost a fight to stop the National Archives from turning over certain White House records to the Jan. 6 committee; judges repeatedly ruled against him as the case made its way through the lower courts, and the US Supreme Court declined to intervene in January, clearing the way for the Archives to turn over the documents — more than two months after the agency had originally planned to do so. Only Justice Clarence Thomas noted his dissent from that order.
Conservative attorney John Eastman has been forced to turn over key collections of emails to the committee, with a judge in March blasting efforts by Trump, Eastman, and others to undermine the results of the election as “a coup in search of a legal theory.” Eastman is continuing to fight in federal court in Santa Ana, California over thousands of additional pages of emails, however, and has a pending lawsuit in DC challenging a separate subpoena to Verizon for his phone records.
Once the committee gets documents, it’s hard to claw them back. In January, a judge denied an early request by Taylor Budowich, a spokesperson for Trump, to get back financial records that JP Morgan Chase Bank turned over to the committee related to Budowich and his company Conservative Strategies Inc. Budowich continues to press claims that the subpoena was invalid and that the committee should return the records; the committee is arguing the case is moot.
The RNC filed its suit in March, contesting a subpoena for records from Salesforce.com, a third-party vendor that the RNC and Trump’s campaign used to communicate by email with donors. The Jan. 6 committee said it wasn’t seeking information about individual donors, but rather about how the GOP had used the platform “to disseminate false statements about the 2020 election.” The RNC denounced the subpoena as a “fishing expedition” aimed at chilling political activity protected by the First Amendment.
Kelly dismissed much of the RNC’s case on the grounds that the committee was immune from being sued under the Speech or Debate Clause of the US Constitution, which is meant to protect the legislative branch’s independence by shielding lawmakers from lawsuits over their work. A former senior counsel for Republicans on the Senate Judiciary Committee, Kelly was confirmed to the DC federal bench under Trump.
In tossing out the remaining claims, Kelly addressed the RNC’s various challenges to the legitimacy of the subpoena and the Jan. 6 committee itself, finding the committee was properly authorized, that the subpoena had a “valid legislative purpose,” and that the subpoena didn’t violate the First Amendment. Kelly’s decision isn’t binding on other judges, but it adds significant heft to the committee’s defense efforts across the rest of the pending cases.
“Nancy Pelosi's attempted seizure of her political opponents' campaign strategy cannot be allowed to stand, and we appreciate Judge Kelly continuing to temporarily block the subpoena. The RNC will continue to fight for the Constitutional rights of Republicans across the country and will appeal this decision,” the RNC’s chief counsel Matt Raymer said in a statement.
A spokesperson for the Jan. 6 committee did not return a request for comment about how subpoena fights have affected the investigation.
Assuming the RNC makes good on its vow to appeal, the DC Circuit could agree to hear the case on a fast track. It could still take several weeks or months for a three-judge panel to rule, and the losing party could then ask the full court to reconsider or petition the Supreme Court to get involved. In the meantime, the RNC could ask the court to keep Kelly’s order on hold or reach an agreement with the committee, which has happened in other subpoena fights.
There’s a long history of legal fights dragging out congressional investigations. As part of Democrats’ probe into Russian interference in the 2016 election and whether Trump and his allies engaged in obstruction, the House Judiciary Committee subpoenaed Don McGahn, who had served as Trump’s first White House counsel, in spring 2019. McGahn did end up testifying — more than two years later, after fiercely contested litigation that ended with no firm resolution from the courts on some of the legal issues at play, because McGahn ultimately reached an agreement with lawmakers.
During the Obama administration, the Justice Department spent years fighting with Republicans over a subpoena for information about a gun sting program known as Operation Fast and Furious. That case, which kicked off with House Republicans voting in 2012 to hold then–attorney general Eric Holder in contempt, formally ended in a settlement in 2019.
Meadows filed suit seeking to stop the committee from compelling his testimony and phone records in December, one of the earliest cases. The committee has urged US District Judge Carl Nichols to rule swiftly, writing in a filing on Monday, “it is important that this case is resolved quickly to assure that it is not used as a tactic for Plaintiff to delay or otherwise obstruct the Select Committee’s investigation.”
Nichols, like Kelly, was confirmed under Trump; many of the subpoena lawsuits have been assigned to him through a court process that keeps related cases involving similar parties and legal questions before a single judge.
Dan Scavino, Trump’s former deputy chief of staff, tried to contest a subpoena issued in December to Verizon for his phone records without revealing his name, but a judge refused to let him do that. His case has been pending without any other major action since January; Verizon’s deadline to respond to the complaint is May 24. Last month, the House voted to hold Scavino and another former Trump aide, Peter Navarro, in criminal contempt for failing to comply with subpoenas for documents and testimony; the Justice Department hasn’t announced if prosecutors will press charges.
Stephen Miller, a former senior advisor to Trump, filed a lawsuit on March 9 challenging a subpoena to T-Mobile for phone records; there’s been no significant activity in that case yet, delaying production of those documents to the committee. Miller testified before the committee last month, however.
Other individuals with pending cases challenging Jan. 6 committee demands for information and testimony include conservative attorneys who supported or directly worked on some of Trump’s unsuccessful efforts to contest the results of the election — Katherine Friess, Cleta Mitchell, Kurt Olsen, and Sidney Powell — as well as Trump allies and postelection conspiracy theory boosters Roger Stone and MyPillow CEO Mike Lindell.
Alex Jones, the far-right Infowars host who was outside the Capitol on Jan. 6, has a case challenging several subpoenas, including two issued to AT&T in November and February for phone records. Jones appeared before the committee for a deposition in January but said he refused to answer a raft of questions, noting in his court papers that he invoked his Fifth Amendment right against self-incrimination “more than 100 times.” The New York Times recently reported that Jones was trying to negotiate a potential immunity deal to speak with federal prosecutors; he hasn’t been criminally charged to date.
Ali Alexander, a key organizer of the “Stop the Steal” movement, filed a lawsuit in December challenging a subpoena to Verizon for phone records. Alexander has reportedly cooperated with the congressional and criminal investigations — he testified before the committee, turned over documents, and intends to comply with a grand jury subpoena, according to the New York Times — but the Verizon case is active; he filed an updated complaint in March.
There are also challenges to committee subpoenas filed by or on behalf of people who are separately facing criminal charges for allegedly participating in the attack on the Capitol, including far-right personality and troll Anthime Gionet (also known by the nickname “Baked Alaska,” Gionet is a former BuzzFeed employee) and Kelly and Connie Meggs, a Florida couple charged in connection with an alleged conspiracy among members of the Oath Keepers extremist group; Kelly Meggs was indicted in the Justice Department’s first seditious conspiracy case earlier this year. Some defendants hoping to persuade judges to hand down less severe sentences previously have shared that they cooperated with the committee.
Steve Bannon, the far-right activist and personality who spent several months working in the Trump White House, is fighting criminal charges brought by federal prosecutors in Washington, DC, over his failure to comply with subpoenas issued by the Jan. 6 committee. A jury trial is set for July 18. Even if Bannon is convicted, though, it won’t require him to comply with the subpoenas.