While lawmakers have said publicly that the committee is prepared to pursue criminal charges for non-compliant witnesses, members are now making it clear that a referral to the Department of Justice will almost certainly come quickly if they do not get the level of cooperation they are looking for.
The move would leave it up to Attorney General Merrick Garland to decide on involving the DOJ in pursuing charges, putting the department in the middle of what many Republicans view as a partisan effort.
“I think we are completely of one mind that if people refuse to respond to questions refuse to produce documents without justification that we will hold them in criminal contempt and refer them to the Justice Department,” Rep. Adam Schiff, a California Democrat and committee member, told CNN Tuesday.
Rep. Liz Cheney, one of two Republicans on the panel, echoed that sentiment, telling CNN “the committee is completely in solidarity” on the decision to move quickly on pursuing criminal contempt charges for those who evade subpoena deadlines.
“People will have the opportunity to cooperate, they will have the opportunity to come in and work with us as they should,” Cheney said. “If they fail to do so, then we’ll enforce our subpoenas.”
The committee’s plans could change based on the information the panel receives from those who choose to cooperate but at the moment, members appear to have settled on a path forward.
Timing up to committee chairman
Even though lawmakers who serve on the committee are unified in making criminal contempt the next step for anyone who defies their subpoena, exactly when that next step is taken seems to be up to one person: Democratic Rep. Bennie Thompson, the panel’s chairman.
Kash Patel and Steve Bannon are scheduled for depositions on October 14 and Mark Meadows and Dan Scavino are scheduled for depositions the following day. While the committee has shared that Patel and Meadows are engaging with them, they were only recently able to successfully serve Scavino and Bannon has so far not been cooperating. So the question becomes how soon after October 15 does the committee act on those individuals who ignored their deposition date.
“I’m going to defer those decisions to the chairman” Schiff said Tuesday when asked if the committee will wait for the deposition deadlines of Thursday and Friday to pass before taking the next step against those who decide not to comply with their subpoena.
Democratic Rep. Stephanie Murphy told CNN that the committee would move towards pursuing criminal contempt “as soon as we are legally prepared to take that step” when asked what would happen if the committee did not hear from individuals with deadlines set for the end of this week.
Raskin predicted, “I would expect the Chairman to decide to move immediately on criminal referrals” if Friday came around and individuals had not appeared before the committee.
“We need to get this process moving. Obviously we would need to get it to the Department of Justice so they could operate with their prosecutorial discretion to decide what to do but we consider it a matter of the utmost importance and urgency going to national security, and the integrity of democracy,” he added.
Until those deadlines pass, committee members are working to be prepared. A source familiar with the committee’s schedule told CNN that the committee met Tuesday night ahead of the key week.
Thompson declined to comment on possibility of criminal contempt, a spokesperson said.
Will Meadows and Patel show for their depositions?
Cheney said the committee is prepared to hold depositions for Meadows and Patel, the two individuals the committee has previously shared is broadly engaging with them though it remains to be seen if they ultimately cooperate.
“We’ll see if they show up. If they show up, we’ll be prepared,” Cheney said.
On whether Meadows and Patel will appear before the committee for their depositions later this week, Murphy said, “my expectation is that they will do the patriotic thing and appear before the committee, and if they don’t have anything to hide, there’s no reason why they won’t show up.”
Murphy told reporters that depositions for later this week are being scheduled as a mixture of in person and virtual.
When asked if he believed all members of the committee would be in the room together for depositions, Raskin said, “I don’t know we’ve gotten that far,” but suggested it could happen if the correct Covid protocols were put in place.
“But certainly the depositions that I’ve been involved in in the past were like that,” Raskin added. “I mean that’s what it was like during the first impeachment trial”
Rally organizers already cooperating
In addition to the committee’s first set of depositions scheduled for this week, 11 individuals connected to rallies that took place on January 6 prior to the US Capitol attack also have a deadline to turn over documents on Wednesday. CNN has learned that as many as 5 of those 11 individuals have already begun sharing documents with the panel.
Two rally organizers have suggested they will only engage with the committee in a public forum and how the rest of the group will respond remains unclear.
Anticipating defiance, Raskin issued a clear threat Tuesday.
“Organizers of Jan. 6 feeder rallies have 1 day left to comply with House subpoenas and turn over relevant records,” Raskin tweeted. “Those who defy a lawful order of Congress to cover up insurrectionary violence will face referral for criminal prosecution—at the very least.”
That follows warnings that Bannon could also face a criminal referral after telling the committee he does not intent to comply with the committee’s subpoena.
Behind the scenes, the committee has debated how fast to move on any legal threat and which option for enforcing subpoenas would be the most effective.
Schiff, who along with Raskin has publicly pushed the idea of using criminal contempt to enforce subpoenas in recent days, suggested Tuesday that it is now the committee’s top option to enforce subpoenas if certain witnesses do not comply.
While Schiff told CNN the committee is not ruling out any options, he made clear that filing civil lawsuits may not be productive given that President Trump and his associates have used the courts as a delay tactic.
“We aren’t for closing any options but we saw in the case of Don McGann and others, how witnesses, or the former president could string Congress along for years. It literally took years to get against deposition. We don’t have years. And so we’re going to take the fastest path to compelling answers to our subpoenas,” he said.
Schiff also made it clear that the committee is committed to moving quickly because they believe there is too much at stake.
“I mean, the President, the former president, the former president nine states is still out pushing the big lie. The same big lie that led people to attack this building, and be police officers and put our lives at risk. So yes, we feel a sense of urgency.”
Also among those who have advocated for a more aggressive approach and seeking criminal charges for those who defy subpoenas are the committee’s two Republicans, Cheney and Rep. Adam Kinzinger, whose involvement in the investigation carries significant political risks given Trump’s influence over the Republican party’s future.
Holding non-compliant witnesses in criminal contempt would take the Justice Department agreeing to prosecute those individuals in federal court — a matter that Attorney General Merrick Garland has not weighed in on publicly to date or indicated if he would support.
“Our hope is the Justice Department would understand both the importance and the urgency of the matter,” Raskin told reporters Tuesday, referring to any criminal referral brought by the House.