WASHINGTON – Requests sent to telecom and social media companies, and to federal agencies, from the House committee investigating the Jan. 6 insurrection at the Capitol reveal pieces of the puzzle that lawmakers hope to assemble for a minute-by-minute picture of what happened that day.
The goal is to fill in gaps that remain missing, despite all the video and court records that have been released. Questions remain about how rioters coordinated their attack to occupy the historic Capitol.
What was the response to desperate pleas for reinforcements from lawmakers and local officials during the hourslong delay before National Guard troops arrived? Who talked to former President Donald Trump that day – and what did he tell lawmakers who called during the siege?
Casting a wide net for information at the start of an investigation is a common technique used to build a map of what happened and why. Each scrap of data allows investigators to fill in gaps in previously released video and court records and to squeeze witnesses for information they might not volunteer or deny remembering.
“It ratchets up the pressure significantly on people who might otherwise say they didn’t remember or denied having communications," Jeffrey Robbins, a former counsel to a Senate investigative committee who teaches about congressional investigations at Brown University, told USA TODAY. “Given that it is a crime to lie to Congress, it puts the squeeze on people who may have made those calls or texts, or received them."
The committee hasn't released the names of hundreds of people it is reviewing. But dozens of names are included in what the committee calls its sweeping demands of federal agencies, including Trump’s wife and children, and former White House officials such as chief of staff Mark Meadows, counsel Pat Cipollone and communications director Hope Hicks.
The investigation's scope is broad. Requests to telecom companies such as AT&T, Sprint, T-Mobile and Verizon ask the companies to preserve records about the time, location and duration of calls – and the content of texts. The letters didn't ask for the documents yet, which are typically requested under subpoena.
Requests to social media companies such as Facebook and Twitter seek posts already provided to law enforcement, as well as communications related to efforts to overturn or challenge the 2020 presidential election. The committee also asked for internal analyses about how the companies dealt with misinformation or disinformation.
And requests to eight federal agencies such as the FBI, the Pentagon and the Department of Homeland Security, seek documents about preparations and response to the attack.
“The committee is clearly planning to paint with a targeted but ultimately broad brush the range of information they want about what led up to, occurred during and happened in the aftermath of the riot,” said Bradley Moss, a national-security lawyer who has represented USA TODAY in Freedom of Information Act cases. “That means, like in any inquiry, getting a comprehensive understanding of who called who and when, and securing context regarding those discussions.”
But Republicans urged companies not to cooperate with the investigation that is expected to cover calls and texts lawmakers made that day. If companies or individuals resist, court battles could take months or years, according to legal experts.
“The real weapon that those seeking to block this investigation or impede it or dilute it or reduce it in some way is logistical: delay," Robbins said.
Figuring out what happened using calls, texts and posts
Lawmakers have said they hope to weave together a tapestry of what led to the violent insurrection that left 140 police officers injured and interrupted Congress counting Electoral College votes.
Call records or texts could reveal previously unknown communications between people who stormed the Capitol or government officials responding to the attack. Social media posts could chart the connections and contributions among participants. And government records may confirm who was making life-and-death decisions about how to respond to the unprecedented attack.
"Was this an organized effort?" Joshua A. Levy, a former counsel on the Senate Homeland Security and Governmental Affairs Committee who teaches about congressional investigations at Georgetown Law School, told USA TODAY. "Were the people storming the Capitol coordinating before they arrived in Washington on Jan. 6? Were they talking to other organizations? Was there any kind of funding or other material support?"
H. Scott Fingerhut, a trial lawyer, law professor and assistant director of the trial advocacy program at Florida International University, said he would subpoena everyone in an effort to get the fullest account possible to help decision-makers prevent it from happening again.
"Certain people may have gone on record to say, ‘I never spoke to so-and-so,' and these records might refute some things," Fingerhut said. "A lot of times, you don’t ‘get’ people for what you were looking for, but you get Al Capone on tax evasion. You get Martha Stewart for lying to a federal agent, but not the underlying thing that you were investigating.”
The investigative committee's chairman, Rep. Bennie Thompson, D-Miss., said the panel will seek information from hundreds of people.
“I won’t tell you who they are, but it’s several hundred people that make up the list of people we plan to contact," Thompson said.
The committee announced Sept. 9 at its initial deadline for documents that it had received thousands of pages and staffers were working to keep the flow coming. The National Archives has begun the process to review presidential records.
What leverage does call records provide?
Security videos and body cameras on police officers have already provided vivid glimpses of the riot. More than 600 criminal cases have begun to document which participants did what. But call data could reveal communications that aren't yet public among lawmakers, White House officials, government agencies and participants in the insurrection.
House Minority Leader Kevin McCarthy, R-Calif.; Rep. Jim Jordan, R-Ohio; and GOP Sens. Tommy Tuberville of Alabama and Mike Lee of Utah have acknowledged talking to Trump that day. Tuberville said he told Trump that Vice President Mike Pence had been evacuated from the Senate chamber. Lawmakers could become witnesses or they might also resist testifying.
But who else might have spoken with Trump or top White House officials? Acting Attorney General Jeffrey Rosen and acting Defense Secretary Christopher Miller each testified at a May hearing they hadn't spoken to Trump that day.
“It gives you the basis to ask people, ‘We’ve got the evidence of the call. What did you talk about?’ including people who denied making calls to certain people," Robbins said. "It's highly valuable."
The records could also be a cure for forgetfulness.
“Is it believable that at that moment, when the doors were being bashed in, when shots were being fired for God’s sake, that you don’t remember even talking to someone or the tenor or gist of a conversation?" Fingerhut said.
Another line of questioning could pursue whether lawmakers or White House officials were communicating with rioters, Levy said. Several lawmakers have been accused of giving tours of the Capitol to rioters before the attack. Rep. Lauren Boebert, R-Colo., denied the accusation, which her spokesman called "irresponsible."
Levy said call records might answer the question: "Were there communications between the Jan. 6 participants and elected officials or government officials?"
Besides nailing down calls, texts would explain what messages were sent when. As the mob ransacked the building, lawmakers and staffers described the events. Police shot a woman to death outside the House chamber. Rep. Tim Burchett, R-Tenn., texted "shots fired" at 2:46 p.m. to a reporter.
Rioters had described their exploits on Facebook and Twitter. Other targets are Parler, Telegram and Zello, which have applications that rioters used to communicate that day, according to federal charging documents.
A Facebook spokesman said the company received the request and looked forward to working with the committee. A Google spokesperson also said the company is committed to working with the committee. She said events on Jan. 6 were unprecedented, that Google and YouTube strongly condemned them and were committed to protecting their platforms from abuse.
Comments and replies in social media posts could lead investigators to a larger circle of contacts to question, Levy said.
“A lot of clues can be gleaned from those kinds of communications," Levy said.
Piecing together social media
A taste of what is available through social media posts can be found among court records that chronicle how rioters planned for travel, accumulated protective gear and stayed in contact through encrypted phone apps during the attack.
Ethan Nordean, the self-described “sergeant of arms” for the Seattle chapter of the Proud Boys who faces charges of conspiracy and obstructing Congress, posted several messages on Parler. On Dec. 27, 2020, he asked for help with protective gear or communications equipment because “things have gotten more dangerous for us this past year,” according to court records.
Members of the mob chanted for Pence and House Speaker Nancy Pelosi, D-Calif., while roaming the halls. Trump tweeted at 2:24 p.m. – two minutes after the vice president was evacuated – that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution."
At 2:53 p.m., Rep. Alex Mooney, R-W.Va., tweeted that he and others evacuating the House chamber were given a respiratory hood and mask for protection from fires or chemical accidents.
Federal agencies are another storehouse of information. Lawmakers have questioned who was making decisions about how to respond. The documents could shed light on what authorizations were given – or not given – and whether one part of the government interfered with another part trying to keep people safe, Levy said.
“It’s the classic, 'What did you know and when did you know it?'" explained Levy. "And what did you do once you became informed about the situation? These kinds of records and communications are a very helpful window into the answers to those questions."
The committee requests to federal agencies went to the National Archives and Records Administration, the FBI, the National Counterterrorism Center, the director of national intelligence, and the departments of Defense, Homeland Security, Interior and Justice.
The request to the archives covered communications by Trump, Pence and top White House staffers such as daughter Ivanka Trump and son-in-law Jared Kushner. Others named in the request included Donald Trump Jr. and Eric Trump, and Melania Trump. The request also covered informal advisers such as Steve Bannon, Rudy Giuliani and Roger Stone. Each could eventually be called as a witness.
“We’re going to follow the facts and circumstances around Jan. 6. Wherever those facts lead us, that’s where we’ll go,” Thompson said.
GOP opposes requests for private info
Republican lawmakers who could be targeted in the investigation have warned the dragnet could extend to any American with a phone or computer.
McCarthy urged telecom companies to resist the requests. He said complying would put the private data of “every American with a phone or computer in the crosshairs of a surveillance state” run by Democrats.
McCarthy had told colleagues that when he told Trump the crowd was comprised of his supporters, Trump replied: “Well, Kevin, I guess these people are more upset about the election than you are,” according to Rep. Jaime Herrera Butler, R-Wash.
Another potential target of the probe, Rep. Mo Brooks, R-Ala., who spoke during Trump’s rally near the White House before the attack on the Capitol, told Newsmax that he wasn’t texting with Trump.
Insurrection fundraiser: Capitol riot extremists, Trump supporters raise money for lawyer bills online
But he said he was texting with other lawmakers and probably used “caustic words” about Pelosi and President Joe Biden. He argued that Democrats shouldn't be allowed on "a fishing expedition, a witch hunt, a star chamber."
“We have rules and laws against unreasonable searches and seizures," Brooks said.
A group of 11 House Republicans wrote to 13 tech companies urging them not to turn over private phone records.
"This power-hungry, smear-campaign of a committee knows this request is a blatant overreach of their congressional authority," Rep. Andy Biggs, R-Ariz., said in a statement about the letter.
Legal battles over subpoenas could last years
The committee could subpoena documents if companies or individuals resist the voluntary requests. Legal experts said despite the Trump tax decision, Congress has well-established authority to compel cooperation. But court battles could tie up for months or years – longer than the committee is willing to wait.
“If the Congress of the United States cannot investigate the facts leading up to and the nature of an insurrection, and the extent to which insurrectionist activity is continuing, I don’t know what Congress has the power to do," Robbins said.
But the legal fight could be prohibitive. The case of Don McGahn, the former White House counsel who was subpoenaed during a Trump impeachment investigation, spent two years fighting a subpoena before negotiating to testify behind closed doors.
“You can expect to see on the part of some people lawsuits in federal court seeking to quash subpoenas, limit subpoenas, delay the production dates for subpoenas, all the usual standard fare of blockading and impeding and slowing down Congress," Robbins said.
Moss said there are limits to what Congress can compel using a subpoena under the Stored Communications Act and Supreme Court decisions such as in the 2018 case Carpenter v. the United States.
The cases raise questions about whether Congress can compel telecom providers to provide information like under a law enforcement investigation, so individuals may be able to narrow the range of information that companies provide, Moss said.
“In the end, there will no doubt be some litigation by certain political officials to quash subpoenas tied to their particular records, but a wealth of data will ultimately be produced to Congress just like in any other oversight inquiry,” Moss said.
This article originally appeared on USA TODAY: Jan. 6 investigators' broad asks of tech firms may squeeze witnesses