The select committee investigating the January 6 insurrection is weighing whether to pursue call logs from the Trump White House on the day of the riot, a move that could present a potentially thorny dilemma for President Joe Biden who would ultimately have to determine whether the records should be covered by executive privilege or qualify as essential evidence for the ongoing probe.
The committee has been engaged in ongoing discussions with the Biden administration about its plans for the investigation as it has taken the lead role in examining all things related to January 6 and prepares to issue its first round of subpoenas, two sources familiar with the matter told CNN.
Phone records from former President Donald Trump’s White House will likely not be among the first subpoena targets as a source familiar with the matter told CNN that the committee has not broached the topic during preliminary discussions with the Executive Branch. But the panel is actively considering the possibility of pursuing those records and other relevant documents that could raise additional executive privilege questions, the source added.
Members of the committee, including GOP Rep. Liz Cheney, have made clear investigators must “get to every piece of information that matters” in order to piece together a detailed understanding of what Trump and his closest allies were doing that day.
But what that will entail still remains unclear.
Select committee chairman Bennie Thompson has declined to say specifically if investigators will bring in former Justice Department officials who were considered key witnesses in the probe led by the House Oversight and Judiciary committees, including former acting Attorney General Jeffrey Rosen.
Rosen was set to be interviewed by the House Oversight and Judiciary committees this week but that plan was scrapped once House Speaker Nancy Pelosi decided to shift all January 6 investigative responsibilities over to the select panel.
Still, the select committee has expressed an interest in speaking to former DOJ officials who have been linked to Trump’s effort to push false voter fraud claims and could seek relevant White House call logs from the National Archives, which has legal custody of all the presidential records from Trump’s time in office.
The Archives acknowledged to CNN that it has possession of the Trump-era call logs and other potentially relevant records from the previous administration. In March, the Archives received a letter from several House committees “requesting records related to the January 6, 2021, assault on the U.S. Capitol,” but it is unclear whether White House call logs were considered part of that specific ask.
Still, the Archives noted that there is a process “by which the Congress and the incumbent administration may request access to records of former administrations.”
But doing so may be fraught with political challenges. Biden has the ultimate say over whether those phone records from the Trump White House can be shared with the committee or if doing so could compromise the privilege of the presidency itself.
Deciding the latter could pose a potentially uncomfortable political scenario should the Democrat-led committee decide to pursue more extreme legal avenues in an attempt to obtain those records.
A source familiar with ongoing engagement between the committee and Biden administration suggested the panel is still deciding if it wants to go down that road, telling CNN it is still “TBD” whether specific requests will be made during staff meetings with the executive branch.
Biden’s executive privilege and Trump’s
The Biden administration has formally declined to assert executive privilege over testimony related to January 6, telling former Justice Department officials in a letter they were free to provide “unrestricted testimony,” but it remains unclear if that view also applies to records and documents from the Trump White House.
Trump can also assert executive privilege if the committee does ultimately request the records, though Biden would still have the opportunity to overrule him, according to federal regulations for presidential records managed by the National Archives.
The process for requesting the call logs and other executive branch records begins with a court-established doctrine known as the “accommodation process,” according to Norm Eisen, who served as special counsel to the House Judiciary Committee for Trump’s second impeachment and trial, during which investigators say the White House largely refused to hand over any relevant documents or records that were requested.
“First you have some combination of written requests and phone conversations to describe what you want, because of constitutional balance of power issues, both sides are supposed to work with each other informally. If that breaks down, you move to the subpoena process, if that breaks down, you go to court,” Eisen, a CNN contributor, said.
Should Biden deem the White House call logs and other internal documents as being protected by executive privilege, the committee will then have to decide if it wants to challenge that decision through litigation — a move that would likely require a months-long court battle.
So far, the Justice Department and the White House Counsel’s Office are letting the six former DOJ officials who witnessed Trump’s pressure on election fraud share what they know with Congress, because January 6 and what led to it is an “exceptional situation” in “which the congressional need for information outweighs the Executive Branch’s interest in maintaining confidentiality.”
“The Counsel’s Office conveyed to the Department that President Biden has decided that it would not be appropriate to assert executive privilege with respect to communications with former President Trump and his advisors and staff on matters related to the scope of the Committees’ proposed interviews,” Associate Deputy Attorney General Bradley Weinsheimer wrote in a letter last month.
There are also other ways the committee could potentially get its hands on those call logs. During Trump’s second impeachment, House investigators faced obtained White House call records from the phone provider after the executive branch made clear it was not going to cooperate.
Shedding light on Trump’s January 6 whereabouts
Questions about how the committee will proceed with regards to potential subpoenas come as it has taken over key witness interviews that were just about to be conducted by another congressional panel.
The select committee, which met virtually on Monday to discuss plans for the weeks ahead, is still in the process of hiring staff and determining the exact scope of its investigation, but members of the panel have already made clear it will issue “quite a few” subpoenas, likely by the end of August.
Specific subpoena targets, however, remain unclear as members have expressed interest in hearing from anyone who might be able to shed light on Trump’s whereabouts on January 6 and reviewing all relevant documents that might exist, including various memos written by senior Trump officials that have not yet been handed over.
That includes former Department of Justice officials believed to have direct knowledge of efforts by Trump and his allies to overturn the 2020 presidential election — individuals emerged as potential witnesses in the more narrowly focused probe being conducted by the House Oversight and Judiciary committees.
Those committees have already released hundreds of pages of documents and requested transcribed interviews from a host of former DOJ officials that could contribute meaningful testimony in the January 6 investigation, including:
- Former Acting Deputy Attorney General Richard Donoghue
- Former White House Chief of Staff Mark Meadows
- Former Assistant Attorney General Jeffrey Clark
- Former Associate Deputy Attorney General Patrick Hovakimian
- Former US Attorney for the Northern District of Georgia Byung Jin Pak
- Former Acting US Attorney for the Northern District of Georgia Bobby Christine.
Some of the former officials who have already been contacted by the Oversight and Judiciary committees, including Rosen, Clark and Donoghue, also expected to hear from the January 6 panel, according to people briefed on the matter.
Last week, Thompson, a Democratic congressman from Mississippi, declined to say if the panel would bring in Rosen and former Attorney General Bill Barr, but contended the Justice Department’s decision to greenlight testimony from former officials who served at the department under Trump will make their job easier.
“We are not putting names to it,” he said. “We think it is important now that the process of accessing individuals is easier that is important for the committee. I appreciate DOJ’s position on it ,and it makes the work of the committee that much easier.”
Thompson wouldn’t say whom he wanted to subpoena.
“It’s early,” he said. “I can tell you that when we issue them, they will be part and parcel to the individuals who are germane to the investigation.”
Targeting McCarthy, Jordan and other Trump allies
Members of the select committee have also expressed interest in hearing from lawmakers who spoke to Trump on January 6, like House Speaker Kevin McCarthy and GOP Rep. Jim Jordan, as well as those who participated in the former president’s rally that day, like Rep. Mo Brooks, suggesting they too could be subpoena targets.
“I’m sure we will want to talk to members of Congress,” Rep. Zoe Lofgren told CNN’s John King on Sunday when asked about Brooks. She also said that “sounds like [Jordan] has something to hide,” pushing back on Jordan’s threats to us that the GOP would seek to depose Democrats Adam Schiff and Eric Swalwell in a Republican majority next Congress.
But the committee may have a harder time securing testimony from Trump and aides such as former White House chief of staff Meadows, as well as McCarthy, Jordan and Brooks.
Even if the Biden administration doesn’t intervene, Trump could still try to go to court to stop the select committee from obtaining documents and testimony from the Trump White House by attempting to assert privilege, an effort that could delay the probe.
Officials could also defy congressional subpoenas as they did frequently during the Trump administration.
GOP Rep. Adam Kinzinger said on Sunday he expects the select committee to issue “a significant number of subpoenas for a lot of people,” in order to learn details of Trump’s whereabouts on January 6, but indicated he would be reluctant to subpoena Trump himself immediately.
“Well, look, I don’t know. Again, it’s going to depend where the facts lead. We may not even have to talk to Donald Trump to get the information. There were tons of people around him, there were tons of people that were involved in the things that led up to January 6. Obviously if you talk to the President, the former President, that’s going to have a whole new set of kind of, like, you know, everything associated with it,” Kinzinger said, when asked on ABC This Week whether he would want to hear from the former President.
Kinzinger struck a different note when asked whether he would support issuing subpoenas to McCarthy or Jordan, saying, when asked, that he would support subpoenas “to anybody that can shed light” on what Trump did on January 6.
He added: “If that’s the leader, that’s the leader. If it’s anybody that talked to the President, they could provide us with that information. I want to know what the president was doing every moment of that day.”
McCarthy has long been among those considered to be a likely subpoena target given previous reporting about his conversation with Trump on January 6.
Interest in hearing testimony from Jordan has increased in recent weeks after a series of interviews during which he failed to directly address questions about the nature of his phone call with Trump on January 6.
While subpoenaing Jordan could carry political risks, Democrats have left the door open to that possibility.
“The odds go up every time he opens his mouth,” one Democratic aide said about the possibility of issuing a subpoena to Jordan.
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