Five big questions as Jan. 6 panel preps subpoenas

Leaders of the special committee investigating the Jan. 6 attack say they can’t let the August recess halt their work and that they’re preparing to send a flurry of subpoenas to start gathering evidence.

House Minority Leader Kevin McCarthy (R-Calif.) and staunch Trump defender Rep. Jim Jordan (R-Ohio) are among those who may be called to testify, in addition to requests for reams of documents and communications.

Here are five big questions facing the special committee as they head into their second month.

Will the panel hit roadblocks for subpoenaed documents?

Members of the committee have made clear that the first stage of their investigation will focus on gathering evidence.

“We have already had discussions about the need to subpoena documents and the sense of urgency we have. Normally we would request voluntary compliance. We may move quickly to subpoenas when it comes to documents so that we ensure that they’re preserved and that there’s no delay,” Rep. Adam Schiff (D-Calif.) told reporters last week.

Experts say this is an important first step for building a case before bringing in any high-profile witnesses like lawmakers or former White House officials.

“You need to inform yourself about as much of the circumstances of the event as you can before you confront witnesses with questions. Because then if they are somehow being evasive, or misleading, or just misleading through omission, you can confront them with documents and say, ‘But what about this call record right here?’ or ‘What about this email right here?’” said Barbara McQuade, who served as a U.S. attorney in the Obama administration.

The move to first subpoena — rather than requesting voluntary compliance — is a sign the committee doesn’t expect cooperation and that it feels it can count on the Justice Department for enforcement.

It also puts people on notice and would allow for charges of obstruction of justice if any entities engage in document destruction of phone records, emails or other communications.

After the first Trump impeachment effort, Democrats have learned to “not waste any time going through this dance of accommodation when it’s not going to happen,” McQuade said.

But the move also comes with some protection for Biden administration officials, who earlier this year told other House committees investigating Jan. 6 that they would need to seek former President Trump’s records from the National Archives.

“If there was a subpoena, I think it’s much easier for the executive branch to comply and say, ‘Look, we didn’t give this stuff voluntarily. We had a subpoena, a legal obligation to produce it. And so we did.’ So I think there may be some political cover that is achieved through a subpoena,” McQuade said.

Ryan Goodman, co-director of the Reiss Center on Law and Security at New York University School of Law, said in addition to documents the committee should consider trying to obtain outtakes from the video Trump released late on Jan. 6 when he encouraged supporters to “go home” and said, “We love you. You’re very special.”

The video reportedly required three takes after Trump repeatedly went off script.

“I think it could be valuable. I don’t want to overstate its significance, but it’s contemporaneous documentation that may provide a strong indication of what his mindset was at the time,” Goodman said.

“It sounds as though it’s his political aides who tried to rein in what he said in the other two takes.”

Should lawmakers like McCarthy and Jordan be called to testify?

McCarthy and Jordan, two of Trump’s top allies on Capitol Hill, both have confirmed they held separate phone calls with the former president on Jan. 6.

Investigators are particularly interested in those conversations as they try to figure out what actions Trump took after he delivered a speech outside the White House urging thousands of his supporters to march to the Capitol and “fight like hell” to stop Congress’s certification of President Biden’s election victory.

But subpoenaing lawmakers can be a complex issue.

The Jan. 6 panel may be hesitant to try to call lawmakers like Jordan to testify for many of the same reasons that Speaker Nancy Pelosi (D-Calif.) refused to place the Ohio Republican and partisan brawler on the committee.

Some witnesses could “create a potential political circus,” Goodman said. “And the committee has so far stepped off on a path that’s very somber and solemn and serious in its fact-finding mission, and I worry that some of the witnesses would use the occasion to play to a very different audience and unsettle what truth the committee is trying to investigate.”

It’s unclear what Jordan’s call or calls with Trump that day were about. Jordan has said he doesn’t recall what they discussed or what time he spoke to Trump. But he was an influential figure in the GOP effort to overturn the presidential election.

The content of McCarthy’s call has been more widely reported, with Rep. Jaime Herrera Beutler (R-Wash.) saying the GOP leader told her about his frantic call with Trump that day begging him to call off his supporters.

“Well, Kevin, I guess these people are more upset about the election than you are,” Trump said, according to Herrera Beutler, after McCarthy assured him it was Trump supporters attacking the Capitol.

Phone records or even other lawmakers may be able to corroborate an account already shared with the media if McCarthy doesn’t want to testify.

“I think the strange quality is that they may not need his testimony just like they may not need Trump’s testimony to know what he was doing inside the White House,” Goodman said.

Still, one of the two GOP members on the committee, Rep. Adam Kinzinger of Illinois, said he would back an effort to seek testimony from McCarthy.

“I would support subpoenas to anybody that can shed light on that. If that’s the leader, that’s the leader,” Kinzinger recently said on ABC’s “This Week.”

“I want to know what the president was doing every moment of that day.”

Could any Democratic witnesses offer testimony?

Two House Democrats have said publicly they warned police about a possible violent attack on the Capitol by Trump supporters one week before the deadly riot. House Financial Services Committee Chairwoman Maxine Waters (Calif.) and Rep. Frederica Wilson (Fla.) held separate phone calls with top Capitol Police brass, urging them to take measures to harden security at the Capitol.

Wilson told a police captain on Dec. 30 that Trump supporters could try to “kill half of Congress” and then-Vice President Pence to halt the certification, while Waters spoke to then-Capitol Police Chief Steven Sund for more than an hour on Dec. 31.

“I talked about, No. 1, you can’t let them up on the plaza. He said, ‘Don’t worry, we’ll have that barricaded.’ I said … the grassy area might be a problem too … He said, ‘No, we’ll have police around, and we won’t let that happen,’” Waters recalled in an interview with The Hill.

“I asked him to close off the top of the hill. He didn’t agree to that. He said the people, you know, have a right to be on the sidewalks and in the street,” she added. “He was so assured that he had it under control.”

Waters also said she asked Sund if he would put more police officers on top of buildings, remembering that both President Kennedy and Martin Luther King Jr. were assassinated by shooters in buildings.

Sund replied that the demonstrators would not be able to climb buildings.

On Jan. 6, as Waters saw images of dozens of rioters scaling the scaffolding around the Capitol, she said she called Sund and proceeded to berate him.

“I called him and I told him how disappointed I was in him. ‘So what the hell are you doing?’” Waters said. “And he said, ‘We’re doing the best we can.’”

Will they go after former Trump officials?

Trump and his legal team would likely turn to the courts to try to stop the committee from subpoenaing any of his former officials.

But a variety of former officials, including those who once worked at the Justice Department, could provide key details for a committee that may delve beyond the security failures leading up to the attack and wade more broadly into Trump’s efforts to challenge the election.

Rep. Bennie Thompson (D-Miss.), the chairman of the select committee, wouldn’t discuss the names of any Trump officials who might be subpoenaed.

“Now that the process of access and individuals is easier, that is important politically, and I appreciate the DOJ position on it,” Thompson told reporters, “and it makes the work of the committee that much easier.”

Experts warned that the committee would need to tread carefully in some cases — particularly with Trump’s former lawyer Rudy Giuliani.

Though he has been a key figure in Trump’s efforts to overturn the election, pursuing an interview could complicate an existing Justice Department investigation involving his dealings in Ukraine that could allow him to plead the Fifth to any questions.

But other figures like former White House chief of staff Mark Meadows could help paint a fuller picture of Trump’s actions throughout the day, while former Justice Department officials could offer new details on apparent efforts to involve the agency in overturning the election.

McQuade said abuse of office should be just as important to the committee as any other lines of inquiry.

“I think more than just why were we unprepared that day when people stormed the Capitol, I think understanding how democracy is being undermined is an important part of the task as well,” she said.

Will there be an August hearing?

Members of the Jan. 6 committee are still weighing whether to hold a public hearing sometime during the six-week summer recess, an idea that’s been floated by Thompson.

There’s a desire to keep up the momentum following the panel’s first televised hearing last week featuring gripping testimony from four Capitol Police and D.C. Metropolitan Police Department officers who described the emotional and physical toll they’ve continued to suffer from defending the Capitol that day.

Among the ideas being discussed for the next hearing are examining the security breakdown at the Capitol leading up to and on Jan. 6, coordination and planning for the attack by right-wing paramilitary and white supremacist groups like the Proud Boys and coordination and planning for the “Stop the Steal” effort by Trump and his White House allies.

But at the same time, committee sources said they don’t want a hearing just for the sake of holding one. There’s also concern among panel members that they might not have enough time to secure documents and witnesses before the August recess is over.

The long summer recess, some panel members believe, could be better spent hiring staff; obtaining and reviewing phone records, text messages and other records; and interviewing witnesses behind closed doors — testimony that could make the panel’s televised hearings in the fall more effective and compelling.

“It’s still a possibility,” Thompson said, “but there’s so much information that has to be collected that it’s almost impossible to collect the information, do the hearings and have the quality of the hearing I think this committee deserves.”

Updated at 10:23 a.m.