Last week, I wrote in this space that the House select committee investigating the violent attack on the US Capitol on January 6 must keep its promise to compel witness testimony even from pro-Trump partisans hostile to its mission.
Subpoena them, I wrote. Subpoena all of them.
My colleague Andrew Feinberg wrote an excellent piece highlighting the scorched-earth methods the seven Democrats and two Republicans conducting the probe could adopt to enforce their subpoenas, measures that include fining or even jailing unlawful resistors.
In an ideal world, Republican lawmakers, Trump White House officials, and anyone else who spoke with the former president on the day of the Capitol riots would voluntarily submit to an interview with the select committee.
We do not live in an ideal world, which, if you can read this column, you must by now be aware.
There is, however, a middle-ground approach that Chairman Bennie Thompson and his committee can — and should — make available to unwilling witnesses before serving them with subpoena documents: the opportunity to testify behind closed doors, away from the cameras, with the transcript of the interview to be released to the public at a mutually agreed-upon date.
Closed-door testimony would protect the committee from the kind of political theater some Democrats (and Republicans, for that matter) want: made-for-TV screaming matches between lawmakers, verbal middle-fingers flying like arrows at Agincourt, pundits racing downward into the pits of hell to find the hottest take.
Turning off the cameras would allow members and witnesses to dispense with the performative aspects of congressional hearings and focus more on the substance of their interviews.
If Thompson wants to fulfill the panel’s stated mission of being “guided solely by the facts” and avoid getting caught up parrying Republicans’ fundamentally non-serious misdirection assaults, this is his best bet.
Closed-door witness testimony for politically sensitive investigations has ample historical precedent in both chambers of Congress as well as in both parties, including in the last five years. The results are, admittedly, mixed.
The Senate Intelligence Committee, led by Republican Chairman Richard Burr of North Carolina, conducted dozens of closed hearings over the course of its bipartisan(ish) three-year probe into Russian interference in the 2016 election. That probe was exhaustive and its final report — split into five volumes — comprehensive. And while investigators ran up against some practical limits of legislative oversight authority, the committee’s Democrats and Republicans managed to maintain a certain degree of professionalism and objectivity regarding the malign influence of the Kremlin’s election interference operations.
Transcribed depositions were House investigators’ favored mode of interview for Justice Department officials caught up in the 2017 and 2018 GOP-led probes of political bias at the DOJ.
Certain Republican members — Jim Jordan and Mark Meadows, if we’re naming names — sabotaged those investigations with their pervasive habit of leaking cherry-picked, mischaracterized interview and document snippets to friendly conservative media outlets.
But the composition of the January 6 select committee is fundamentally different in that all nine members are pulling in the same direction on this investigation. No one on the January 6 select panel wants to sabotage the integrity of their own probe by leaking misleading portions of documents to the press, only to later have their claims refuted by the full context of the official transcripts.
There are, of course, several obstacles to conducting the investigation into the Capitol riot mostly behind closed doors.
First, such a process would require mutual trust between the committee and witnesses, agreements not to leak information to the media before transcripts of their conversations are released through official channels. That kind of trust is scarce currency on Capitol Hill these days, especially between members with as much thorny history as House Minority Leader Kevin McCarthy and select committee member Adam Schiff, who led House Democrats’ first impeachment of Donald Trump in 2019.
Congressional panels have abused closed investigations before, most famously during the 1950s by Republican Senator Joseph McCarthy of Wisconsin. Between 1953 and 1954, McCarthy spoke with more than 500 witnesses in a closed setting to determine how pervasive communist sympathy ran within the US government’s foreign policy apparatus.
“This ostensibly protected the privacy of those interrogated, but also gave the chairman an opportunity to give to the press his version of what had transpired behind closed doors, with little chance of rebuttal,” former Senate Historian Donald A. Ritchie wrote in an officially sanctioned 2003 report.
Americans are rightfully wary of such damaging historical abuse.
Democrats would also have to contend with outside accusations of suspiciousness and secrecy, no matter how frivolous those accusations might seem.
The January 6 probe is already so high-profile, so baked into the mainstream political discourse that shuttling interviewees away from the cameras could inflame the distrust of an already distrustful nation — on both ends of the spectrum. “What are they hiding?” the Fox News chorus would certainly sing. Even many liberals want to see a rock fight, not the serifed bureaucratic transcription of one.
Thompson and other members of the January 6 panel, including Republican Congresswoman Liz Cheney, have struck all the right notes so far on how they plan to conduct their investigation.
Any resistance from witnesses “whose testimony is germane to the mission of the select committee” will be met with a quick subpoena and strong enforcement measures, Thompson has told the press.
But to preserve the institutional fabric of the House of Representatives, the committee should exhaust every arrow in its quiver before resorting to open subpoena combat.
Hopefully both parties can see that.