January 6 committee set to meet in person on Tuesday as it debates whether to invite Trump and Pence to appear

By Annie Grayer, Jamie Gangel, Zachary Cohen, Gloria Borger and Sara Murray, CNN

(CNN) - As the House select committee investigating the January 6, 2021, attack nears its final chapter, members plan to meet in person on Tuesday and one of the most pressing questions they'll address is whether the committee should formally request that former President Donald Trump and former Vice President Mike Pence appear before them.

Such appearances are exceedingly rare in US history. According to multiple sources, the committee does not expect either man to testify, but some members and staff believe the invitations should be extended for the record.

"How do you create a historic record without including formal requests for the two top witnesses," said one source familiar to the committee's work.

Members of the committee, including Chairman Rep. Bennie Thompson, a Mississippi Democrat, have consistently said they'd like to hear from Pence and would welcome Trump's testimony should he offer it on their terms but internal discussions about formally reaching out to both men has intensified in recent weeks now that the panel's investigation will soon come to an end, the sources said.

Democratic Rep. Zoe Lofgren of California, a member of the panel, told CNN, "Just speaking for myself, I would like to hear from both of them. Whether we actually will is a separate question."

Whether the panel decides to call Trump or Pence could prove to be an important data point should the committee ultimately opt to submit a criminal referral for Trump -- something members of the panel say they expect to seriously consider, while such a move would be largely symbolic in nature.

"I tend to think that you will see us seriously have that debate, and I wouldn't be surprised if we do criminal referrals," committee member Republican Rep. Adam Kinzinger of Illinois told CNN in a recent interview. "I do think that as we come to the end of the investigation, we've already presented a lot to say there is some criminal culpability here."

Regardless of whether the committee issues referrals, the former President already faces potential legal jeopardy on a variety of fronts. The Justice Department is probing the handling of classified documents after Trump left office; federal investigators have steadily expanded their probe into the Capitol riot and the events leading up to it; and Trump is at the center of a criminal investigation into efforts to overturn the 2020 presidential election in Georgia.

In addition to discussing the path forward on Trump and Pence, the panel is expected to use Tuesday's meeting to continue to plan its next round of hearings, and work on its final report that is expected in December, sources tell CNN.

The committee also has to decide what to do about the five Republican lawmakers who have refused to cooperate with subpoenas: House Minority Leader Kevin McCarthy of California and GOP Reps. Jim Jordan of Ohio, Mo Brooks of Alabama, Andy Biggs of Arizona and Scott Perry of Pennsylvania.

It continues to debate whether to subpoena other high-profile individuals, including Virginia "Ginni" Thomas, the wife of Supreme Court Justice Clarence Thomas.

With just a few months left before the year's end, multiple sources acknowledged to CNN the committee does not expect it will ever hear from the Trump allies who have fought subpoenas such as Trump's former chief of staff Mark Meadows, and former deputy chief of staff Dan Scavino.

There are also several investigative threads that remain open-ended but with limited time left, the committee is now deciding what to prioritize, sources tell CNN. That includes issues related to the US Secret Service, the sources said.

"We are in active deliberation and discussion about how to tie up loose ends in the investigation and then present a powerful report and set of recommendations to the Congress and the people," Democratic Rep. Jamie Raskin of Maryland, a member of the committee, told CNN, acknowledging that whether to call Trump and Pence is on that list of loose ends. "The chair and the committee will have to work together to come to decide about what to do about people who haven't testified so far."

Changing landscape

One factor weighing on members as they approach the September session is they realize the political landscape has shifted dramatically since its last hearing on July 21 -- which took place before the FBI search of Trump's Mar-a-Lago residence and pre-dated several significant escalations in the parallel criminal investigations focused on efforts to overturn the 2020 election. And as committee members return this fall -- even with a series of blockbuster hearings under its belt -- the bar for its work to break through is exponentially higher.

In light of recent events, one source familiar with the committee's planning said members and investigators are "taking some time right now to assess what makes the most sense" in terms of how best to proceed and "weave a coherent narrative."

"I mean, the country now understands all of the essential elements of the plot to overthrow the 2020 presidential election and install Donald Trump as president for another four years," Raskin said. "There has been there's been a lot of developments in terms of the Department of Justice and its own investigations, but of course that's on a separate track from us."

Multiple sources involved in the committee's work said they hoped its hearings and work helped generate public pressure and momentum -- and led to the intensifying of the various criminal investigations into January 6. The committee has already begun handing over transcripts to the Justice Department, and DOJ has begun subpoenaing a wide array of Trump allies for information, including anything they've provided to the committee.

Investigators working on criminal probes have viewed some of the panel's final actions as breadcrumbs for prosecutors, whose work will continue, according to a person familiar with the matter.

While the committee's recent request for a voluntary interview with former House Speaker Newt Gingrich may not ultimately lead to his testimony, the committee's letter to Gingrich expounded on little-known details about his alleged role in the fake elector plot and his efforts to push election lies about Georgia. Both topics are avenues of interest for federal prosecutors, as well as an Atlanta-area district attorney investigating Trump.

New investigative leads

Even as the committee deliberates on these matters, it is also continuing to pursue new leads, plan more hearings, and write a final report. The plans for what to include in potentially two more hearings this month still remain in flux, sources say.

"I believe that we need to have at least one, if not two final investigative hearings that will supply information in a number of areas where mystery lingers and then I think we need to have a final hearing that will canvass our recommendations and explain why we think certain changes are necessary in order to prevent electoral sabotage and political violence in the future," Raskin said.

In terms of areas where "mystery lingers," the panel has asked the National Archives and Records Administration if any of the documents recovered from Mar-a-Lago are relevant to its investigation, sources say. It continues to investigate document destruction in the Trump White House sources close to the investigation tell CNN, and has even asked witnesses about whether Meadows, who stopped cooperating with the committee, burned documents in his West Wing office fireplace.

Because the Justice Department is conducting an ongoing investigation, both the National Archives and the January 6 committee have no window into exactly what the DOJ found during the Mar-a-Lago search, according to sources familiar.

Separately, the committee has asked the National Archives for the electronic communication Meadows handed over, but because that includes a large number of texts and emails, the agency is still processing. The committee doesn't know yet whether there is anything new, or this just duplicates what he already gave them, according to those sources.

Investigators have also learned new information about the deletion of Secret Service text messages around the Capitol attack even if those messages have not been recovered, which sources say could appear in upcoming hearings.

"It's not clear that they are recoverable at this point. But we're, we're not giving up," one source said. Referring to the texts the source added, "That's not the only kind of evidence that exists."

Kinzinger told CNN that members of the panel believe that former Secret Service agent Tony Ornato was personally involved in efforts to discredit the testimony of Trump White House aide Cassidy Hutchinson while he was still at the agency, and said unnamed Secret Service officials and others simply adopted his side of the story.

"I just think it's so important to keep in mind that, through quote, anonymous sources, which we believe to be actually Tony Ornato himself, he pushed back against Cassidy Hutchinson's testimony and said, it's just not true and Tony will testify under oath. And then of course, has not come in to testify under oath," he told CNN.

CNN has reached out to the Secret Service for comment on this story.

"Mr. Ornato plans to continue cooperating in the investigations related to the events of January 6," his counsel, Kate Driscoll of law firm Morrison & Foerster, told CNN.

Hutchinson testified back in June that Ornato witnessed an altercation between Trump and his Secret Service detail over wanting to go to the Capitol on January 6. The panel has spoken with Ornato over the course of its investigation, but not since Hutchinson's public testimony.

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