The Dread Delays of One DC District Court
Peering into the January 6th Investigation's Tar Pit
On Friday morning, October 21, 2022, Stephen Bannon appeared in Judge Carl Nichols’ courtroom to be sentenced for defying a subpoena for documents and testimony issued to him by the January 6th Committee. The sentencing happened to fall exactly one year after Congress passed a resolution holding Bannon in contempt. The subpoena itself had been issued by the committee’s chairman a month before, on September 23, 2021, and Bannon had steadfastly refused to provide documents and testimony for all 13 of the intervening months. Judge Nichols, a Trump appointee, imposed a sentence of four months imprisonment, rejecting Bannon’s argument that he should only serve probation, but he granted Bannon an unusual stay of his sentence so that he could appeal the case, adding months or years to the interval between Bannon’s contempt and his punishment.
It’s not the first time the January 6th committee’s investigation has found Nichols’ court a drag. In the last year, Judge Nichols has presided over 11 of the 15 subpoena challenge cases that have been brought in the Prettyman Courthouse in DC but has failed to issue a substantial ruling in every single one of them, according to an analysis of court records by Pawprints. These are cases in which a subject of the investigation has sued to prevent a third party service provider, such as a cell phone company or a bank, from turning over data to investigators pursuant to a subpoena. Typically, when a service provider receives a congressional or law enforcement subpoena, it sends a letter informing its customer and warns that it will start turning over the requested records unless it receives notice of a court proceeding challenging the subpoena by a particular date. If the customer acts promptly to file a lawsuit, whatever its merits, that may well stall the progress of the investigators toward getting the requested records. The third party generally will delay production until the court case is resolved. (Of course, it’s far from foolproof; investigators may still be able to obtain the records from other sources and in other ways.)
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Judge Nichols, it appears, hasn’t been very helpful in getting them resolved. Although these 10 subpoena challenge cases before him were filed between December 2021 and May 2022, not a single one has resulted in a decision from him on a motion to dismiss. Half a dozen motions to dismiss are currently pending before him, 5 of which are fully-briefed.1 The oldest of these motions, the January 6th Committee’s motion to dismiss the case the Oath Keeper Connie Meggs filed, has been fully-briefed and awaiting a ruling since mid-April 2022.
Not all of this, to be sure, has been within Judge Nichols control. Lawyers for the Committee, which is represented by the House of Representatives’ general counsel Douglas Letter’s office, have typically proceeded slowly. In cases where they have moved to dismiss, they have waited up to 5 months after the filing of the lawsuit to make the motion. In two other cases filed by the freelance photographer Amy Harris and the powerful Trump lawyer Cleta Mitchell, the Committee hasn’t yet bothered to ask for a dismissal at all; instead, House lawyers have filed for extension after extension rather than make any substantive move, presumably because of some ambivalence about pursuing these subpoenas at all. In another case brought by a mysterious limited liability company, the January 6th Committee wasn’t named as a defendant and hasn’t sought to intervene; the only defendant, T-Mobile, hasn’t yet moved to dismiss. One of the 10 cases has actually been dismissed, but that decision was principally made by the plaintiff, Trump’s attorney John Eastman, who put in for a voluntary dismissal shortly after having his phone seized by FBI agents outside a New Mexico restaurant as part of an apparently-related Department of Justice investigation.
Nevertheless, Judge Nichols’ failure thus far to issue an opinion or order on any of the fully-briefed motions he has to decide is notable. Two other District Judges in the DC courthouse have been able to come to a decision on a motion to dismiss. Judge Timothy Kelly, a Trump nominee, dismissed a subpoena challenge case brought by the Republican National Committee in May of 2022. And Judge James Boasberg, an Obama nominee, dismissed a subpoena challenge case brought by Trump’s spokesman Taylor Budowich in June.2
Nichols has also slow-rolled a similar case involving Trump’s former Chief of Staff Mark Meadows. Meadows has been fighting a Committee subpoena—one he would have to answer himself, not a subpoena to a third party—since late last year on the grounds that he is immune from testifying as a presidential advisor. The Committee filed a motion for summary judgement in April; it was fully-briefed by the end of May. Then, Judge Nichols ordered additional briefing on two issues. That carried on through mid-August. The parties met for oral arguments in early September. And still, in late October, with the Committee’s televised hearings come to an end and the midterm elections two weeks away, there still has been no decision from Judge Nichols—just as there has been no decision from him regarding the third party subpoenas challenged by Ali Alexander, Susanne Gionet, Connie Meggs, Stephen Miller, Roger Stone, and Kurt Olsen.
In much of the world of federal litigation, delays of the length discuussed in this post might not be very remarkable. Some complicated civil lawsuits take years to even move past the motion to dismiss. But for a congressional investigation that is bounded by the political calendar—one that Republicans are almost certain to terminate if they gain control of the House—delays of many months are nigh upon existential. Here, such delays may determine the difference between the public learning the important facts about an attempted coup and those facts remaining out of sight and accountability remaining out of our reach.
By “fully-briefed,” I mean that the moving party (i.e., in these cases, the January 6th Committee, which is the defendant) has filed their motion and a memorandum arguing in favor of it, the non-moving party (i.e., here, the plaintiff who brought the suit, e.g. Ali Alexander or Roger Stone) has filed their memorandum arguing in opposition to the motion, and the moving party has filed a memo replying to that opposition. That’s usually as far as the written briefing of a motion goes.
Both of those cases went up on appeal; the Committee backed down on the RNC subpoena after it saw the DC Circuit panel it would face (all three Trump appointees to the Circuit—Gregory Katsas, Neomi Rao, and Justin Walker), and Budowich’s appeal is still pending. Because the Committee withdrew the subpoena mooting the RNC’s appeal, the three Trump-appointed judges on the DC Circuit panel vacated Judge Kelly’s opinion.