By Amber Phillips
Politics Reporter
Yesterday at 1:46 p.m. EST
Other than understanding the level of President Donald Trump’s involvement in the riot at the Capitol, the congressional committee investigating Jan. 6 most wants to know if and how Republican members of Congress aided and abetted the attack.
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But the committee is going to have to fight to get that information. It’s very rare for a committee in Congress to try to force members to testify.
Here’s what’s happening and how the committee can try to compel Republican members of Congress to talk to it about Jan. 6.
The committee has said it’s looking at its next options.
The next, obvious step would be to subpoena those lawmakers. A subpoena is a legally binding request, and you can to go jail for ignoring one. Trump adviser Stephen K. Bannon is facing trial this summer for just that; former Trump White House chief of staff Mark Meadows could face charges, too.
But members of Congress are different. It’s an open question if the committee can subpoena its own colleagues. For all the fighting between parties on Capitol Hill, it’s almost unheard of for Congress to force its colleagues to testify. (With the exception of the Ethics Committee, which exists solely to police fellow House lawmakers.)
“I can’t, off the top of my head, recall a case in which a committee other than the Ethics Committee has subpoenaed a member of the House, ever,” said Stanley Brand, a congressional ethics expert who is representing former deputy White House chief of staff Dan Scavino before the committee.
The committee is trying to figure this out. “I don’t know what the precedent is, to be honest,” Rep. Adam B. Schiff (D-Calif.), told my colleagues last summer.
Mike Stern is a former lawyer for the nonpartisan House counsel office, and he thinks the House can subpoena its own members, given that the Ethics Committee does it regularly.
The committee hasn’t subpoenaed anyone yet, but that could be coming.
The panel’s chairman, Rep. Bennie G. Thompson (D-Miss.), has repeatedly said that if the committee can do it, there would be “no reluctance to subpoena” members of Congress, despite how unprecedented it would be.
That raises the question of what happens if these lawmakers ignore a subpoena. Stern said the tools Congress has are the same it uses to pressure Trump allies to talk: Congress could hold them in contempt and ask the Justice Department to consider prosecuting them. The committee seems willing to travel down that road.
These lawmakers could go to court to fight a subpoena by arguing that such a request is politically motivated. Maybe that could gain traction in court given that the committee is made up of mostly Democrats. (There are just two Republicans on it after Republicans refused to participate in an investigation aimed at Trump and Jan. 6.)
Jordan’s letter to the committee seemed to hint at this: “The American people are tired of Democrats’ nonstop investigations and partisan witch hunts,” he said, using Trump-like phrasing.
But Brand said that would be a novel legal argument, and thus risky. “No court has recognized partisanship as a reason in and of itself” to let someone sidestep a subpoena, he said.
Another long-shot idea is for these lawmakers to pull out the Constitution and argue that they are immune from being questioned about their work as lawmakers. That’s the “speech and debate clause.” But it specifically protects lawmakers from questioning in venues outside of Congress. The Jan. 6 committee was set up by Congress and made up of members of Congress.
Lawmakers could also argue that the committee, in subpoenaing members of Congress, creates a slippery-slope situation. “What would stop a committee from subpoenaing members of the opposite party to obtain a political advantage?” asked Brand, summarizing a potential argument. “That is why the Ethics Committee is evenly split — to prevent abuse of the minority by the majority.”
Committee members argue they’re focused on a very narrow, legislative purpose: Find out why the attack on the Capitol happened and what laws Congress can pass to prevent it from ever happening again.
The committee is racing to put together its findings on the Jan. 6 attack and Trump’s efforts to overturn his election loss. They want that out before the November midterm elections, when control of Congress is up for grabs, and before Republicans could win back the House and disband the committee entirely.
If the committee senses it’s running out of time — or just doesn’t want to deal with the political drama of subpoenaing a member of Congress — it could skip talking to these lawmakers altogether, and go around them and try to get their phone records or other related documents. The committee hasn’t managed to talk to Meadows, but it did manage to get revealing text messages from him.
This past fall, House Minority Leader Kevin McCarthy (R-Calif.), who opposed creation of the Jan. 6 committee, warned telecommunications companies that they would be violating federal law if they handed over lawmakers’ phone records. But no legal expert we talked to could figure out what federal law he was referring to. More likely, it was an empty threat.
Stern said that if these lawmakers’ phone companies get subpoenaed to hand over phone records, they probably would. But Brand pointed out that phone records don’t share the contents of the call, just that a call took place.
And lawmakers could tie up that request in court, too. (Possibly by using their campaign funds for legal fees.) It took Congress years to get Trump’s tax returns, and by then he was out of office.
Politics Reporter
Yesterday at 1:46 p.m. EST
Other than understanding the level of President Donald Trump’s involvement in the riot at the Capitol, the congressional committee investigating Jan. 6 most wants to know if and how Republican members of Congress aided and abetted the attack.
2021 Election: Complete coverage and analysisBut the committee is going to have to fight to get that information. It’s very rare for a committee in Congress to try to force members to testify.
Here’s what’s happening and how the committee can try to compel Republican members of Congress to talk to it about Jan. 6.
Whom the committee wants to talk to
The committee members do much of their work in private. We know they’ve at least asked Republican Reps. Jim Jordan (Ohio) and Scott Perry (Pa.) to talk to them about conversations they’ve had either with Trump on the day of the attack, and/or about any conversations they had with Trump allies leading up to Jan. 6. Both have refused. Jordan on Sunday said he wouldn’t participate, calling the request “an outrageous abuse.” Last month, Perry said he wouldn’t participate and called the committee “illegitimate.”The committee has said it’s looking at its next options.
What are those options?
The next, obvious step would be to subpoena those lawmakers. A subpoena is a legally binding request, and you can to go jail for ignoring one. Trump adviser Stephen K. Bannon is facing trial this summer for just that; former Trump White House chief of staff Mark Meadows could face charges, too.
But members of Congress are different. It’s an open question if the committee can subpoena its own colleagues. For all the fighting between parties on Capitol Hill, it’s almost unheard of for Congress to force its colleagues to testify. (With the exception of the Ethics Committee, which exists solely to police fellow House lawmakers.)
“I can’t, off the top of my head, recall a case in which a committee other than the Ethics Committee has subpoenaed a member of the House, ever,” said Stanley Brand, a congressional ethics expert who is representing former deputy White House chief of staff Dan Scavino before the committee.
The committee is trying to figure this out. “I don’t know what the precedent is, to be honest,” Rep. Adam B. Schiff (D-Calif.), told my colleagues last summer.
Mike Stern is a former lawyer for the nonpartisan House counsel office, and he thinks the House can subpoena its own members, given that the Ethics Committee does it regularly.
The committee hasn’t subpoenaed anyone yet, but that could be coming.
The panel’s chairman, Rep. Bennie G. Thompson (D-Miss.), has repeatedly said that if the committee can do it, there would be “no reluctance to subpoena” members of Congress, despite how unprecedented it would be.
That raises the question of what happens if these lawmakers ignore a subpoena. Stern said the tools Congress has are the same it uses to pressure Trump allies to talk: Congress could hold them in contempt and ask the Justice Department to consider prosecuting them. The committee seems willing to travel down that road.
How members of Congress could fight back
There are a few legal options that could be open to Jordan and Perry, but they’re pretty narrow. “It’s sort of like they have 10 issues and are going to throw them up against the wall and see if any will stick,” Stern said. “It’s not likely that one will stick, but you never know.”These lawmakers could go to court to fight a subpoena by arguing that such a request is politically motivated. Maybe that could gain traction in court given that the committee is made up of mostly Democrats. (There are just two Republicans on it after Republicans refused to participate in an investigation aimed at Trump and Jan. 6.)
Jordan’s letter to the committee seemed to hint at this: “The American people are tired of Democrats’ nonstop investigations and partisan witch hunts,” he said, using Trump-like phrasing.
But Brand said that would be a novel legal argument, and thus risky. “No court has recognized partisanship as a reason in and of itself” to let someone sidestep a subpoena, he said.
Another long-shot idea is for these lawmakers to pull out the Constitution and argue that they are immune from being questioned about their work as lawmakers. That’s the “speech and debate clause.” But it specifically protects lawmakers from questioning in venues outside of Congress. The Jan. 6 committee was set up by Congress and made up of members of Congress.
Lawmakers could also argue that the committee, in subpoenaing members of Congress, creates a slippery-slope situation. “What would stop a committee from subpoenaing members of the opposite party to obtain a political advantage?” asked Brand, summarizing a potential argument. “That is why the Ethics Committee is evenly split — to prevent abuse of the minority by the majority.”
Committee members argue they’re focused on a very narrow, legislative purpose: Find out why the attack on the Capitol happened and what laws Congress can pass to prevent it from ever happening again.
Time is not on the committee’s side
Republican lawmakers could still win by tying things up in court for the next year.The committee is racing to put together its findings on the Jan. 6 attack and Trump’s efforts to overturn his election loss. They want that out before the November midterm elections, when control of Congress is up for grabs, and before Republicans could win back the House and disband the committee entirely.
If the committee senses it’s running out of time — or just doesn’t want to deal with the political drama of subpoenaing a member of Congress — it could skip talking to these lawmakers altogether, and go around them and try to get their phone records or other related documents. The committee hasn’t managed to talk to Meadows, but it did manage to get revealing text messages from him.
This past fall, House Minority Leader Kevin McCarthy (R-Calif.), who opposed creation of the Jan. 6 committee, warned telecommunications companies that they would be violating federal law if they handed over lawmakers’ phone records. But no legal expert we talked to could figure out what federal law he was referring to. More likely, it was an empty threat.
Stern said that if these lawmakers’ phone companies get subpoenaed to hand over phone records, they probably would. But Brand pointed out that phone records don’t share the contents of the call, just that a call took place.
And lawmakers could tie up that request in court, too. (Possibly by using their campaign funds for legal fees.) It took Congress years to get Trump’s tax returns, and by then he was out of office.
