The chairman of the committee to investigate the Jan. 6 incidents on Capitol Hill, Adam Schiff (D-Calif.), said in an interview with CNN on Tuesday, Oct. 12, that those witnesses who do not come forward to testify will be referred to the Department of Justice to be prosecuted for criminal contempt.

Schiff, who chairs the investigative committee, used the news network interview to make his intentions clear.

“I can’t go into the communications, but we have engaged with lawyers that are representing them to try to secure their testimony. But also to make it very clear that those who don’t cooperate with our committee are going to be the subject of criminal contempt,” Schiff declared. “We will vote on it in the House at the appropriate time, and we will refer to the Justice Department for prosecution. So, we’re not fooling around.”

The law allows Congress to refer a noncompliant witness to the Justice Department for a criminal prosecution, which could result in jail time, a fine, or both.

The background to Schiff’s statements

On Sept. 23, the committee sent subpoenas to testify to four former Trump officials: Chief of Staff Mark Meadows, Dan Scavino deputy chief of staff for communications; Kashyap Patel, chief of staff to the secretary of defense; and Steve Bannon, who played a strategist role before the former president took office to allegedly probe them for the events on Capitol Hill on Jan. 6, 2021.

According to The Hill, Steve Bannon’s lawyer sent a letter to the committee notifying that his client would not appear to testify, arguing that Trump’s legal team advised them to challenge the subpoena based on privilege for having been an executive officer.

“We must accept his direction and honor his invocation of executive privilege. As such, until these issues are resolved, we are unable to respond to your request for documents and testimony,” Robert Costello, Bannon’s attorney, wrote in the letter. “We will comply with the direction of the courts.”

As for Mark Meadows and Kashyap Patel, they have communicated with lawmakers on the investigative committee. But the committee has been unable to reach Dan Scavino to serve the subpoena.

Why they subpoenaed Bannon and Meadows

According to the committee’s letter to Steve Bannon to subpoena him to testify, the former Trump strategist was allegedly at a hotel on Jan. 5 trying to persuade lawmakers to block certification the next day. In addition, he was alleged to have been communicating with Trump constantly to ask him to put together a plan for Jan. 6.

As for Meadows, the subpoena focuses on his involvement in Trump’s efforts to pressure the Justice Department to investigate several allegations of voter fraud and his coordination with leaders of Women for America First, which organized the Jan. 6 rally in front of the White House.

Executive Privilege

According to experts who spoke to The Hill, the privilege cited by Bannon on Trump’s advice only applies to those officials who are serving in office, and in the case of former Trump officials, it would not apply.

However, it is unclear whether the privilege considers that the events for which they are being subpoenaed to testify did occur when they were active officials. Thus the information the committee seeks to obtain from them is still protected by executive privilege.

Trump had managed throughout his administration to dodge more than one subpoena for his officials to testify using the privilege mentioned above when he was still president. Thus, for Bannon and the other former officials not to testify, Trump must apply for executive privilege in court.

The neutrality of justice

On Aug. 20, after several months of investigation, the FBI released a report in which it indicated that there was very little evidence that the incidents of Jan. 6—in which several dozen people forcibly entered the congressional grounds—had been coordinated.

Nevertheless, Democratic Representative Adam Schiff, in his statements to CNN, insisted on pointing the finger at former President Trump:

“… these four witnesses, in particular, are really in a position to know exactly what the president was doing, what the response was like, why we weren’t better prepared, and the role of the administration in this attack on the U.S. Capitol.”

In addition, Republican and conservative lawmakers have sharply criticized the investigative committee for having a strong political bias because House Speaker Nancy Pelosi rejected the representatives nominated by Republican leader Andy McCarthy. Instead, she assigned Republican representatives who have expressed their positions against the former president, a central part of the committee’s investigation.

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