The House Subpoena Wars The Jan. 6 committee tries to coerce the testimony of Members.
Partisanship on Capitol Hill is as bitter as we can recall, and it’s about to get worse. The Jan. 6 special committee has unleashed the subpoena power of the House against fellow Members.
The committee on Thursday issued commands to five GOP Members of Congress to testify about events surrounding the Jan 6 Capitol riot. Minority Leader Kevin McCarthy (Calif.)and Reps. Scott Perry (Pa.), Jim Jordan (Ohio), Andy Biggs (Ariz.) and Mo Brooks (Ala.) have refused to answer committee questions, so they’re getting unprecedented subpoena treatment.
House subpoenas to Members are typically reserved for investigations by the Ethics Committee focusing on allegations of corruption. The Ethics Committee has an equal number of Democrats and Republicans, and its investigations (if not always its judgments) are traditionally bipartisan.
The Jan. 6 committee has two GOP Members, though they were chosen by Speaker Nancy Pelosi after she rejected two of Mr. McCarthy’s candidates. The Minority Leader then declined to nominate anyone else. Republicans are sure to see the subpoenas as a case of turning the investigative power of the House against the opposition party.
If Democrats think this will be a one-time-only event, they are dreaming. If Republicans retake the House in November, you can guarantee that Mr. Jordan, as likely Chairman of the Judiciary Committee, will find some reason to subpoena Democrats about oh, say, what they knew about the Russian collusion narrative or Democrats who objected to the electoral vote counts in 2000, 2004, or 2016.
There’s also a question of the legality of these subpoenas. The targeted Republicans are unlikely to comply and will take the matter to court. The committee will then have to decide whether to hold their colleagues in contempt and refer them to the Department of Justice, presumably for prosecution.
Republicans will argue that any such effort is a violation of the Constitution’s Speech and Debate Clause. That provision protects Members for speech related to their legislative duties. The GOP Members will say the information the committee wants is related to their duty in certifying the Electoral College votes on Jan. 6 under the Electoral Count Act. We think that law is itself unconstitutional and should be repealed, but it is still on the books.
The committee claims it has no choice but to coerce the testimony because it is vital to the Jan. 6 probe. But the committee has already spent 10 months interviewing more than 1,000 witnesses and obtained tens of thousands of phone records, text messages and documents. It plans to present findings in June public hearings.
Does the committee really need to interview Mr. McCarthy about the call he had on Jan. 6 with Donald Trump ? Mr. McCarthy has already publicly described the call, and the public record has amply demonstrated Mr. Trump’s monumental failure of character and duty in not moving to stop the riot.
Given the short time before the June hearings, and the all but certain GOP resistance, it’s hard not to conclude that the subpoenas are intended to embarrass the targets and suggest some complicity with the riot. They aren’t likely to yield new information even as they further erode whatever comity remains in the House. No good will come of this effort.
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