Opinion by
Greg Sargent
Columnist
Today at 10:58 a.m. EDT
Mark this down: If Republicans win the House in the 2022 elections, one of their very first acts in the majority will be to impeach President Biden for the offense of having won the 2020 election.
Okay, that’s a joke. But only partly. Republicans would not put it in those terms, of course, but that would be functionally what they are doing.
We’re now beginning to see just how ugly a House GOP takeover would be for the country. What is unmistakable is that a Republican House would be singularly devoted to using its power to avenge Donald Trump’s 2020 loss — and to whitewashing his efforts to overturn it in every way possible.
Case in point: House Minority Leader Kevin McCarthy (R-Calif.) has now openly threatened to use a GOP-controlled House to punish private companies that comply with lawful subpoenas issued by the House select committee examining the Jan. 6 insurrection.
In an extraordinary statement, McCarthy lashed out at the select committee over its directive earlier this week that telecommunications and social media companies should preserve records that might be relevant to their investigation.
McCarthy said that if these companies turn over any information, they will be in violation of federal law, adding that “a Republican majority will not forget and will stand with Americans to hold them fully accountable.”
That is an explicit threat to use the “Republican majority” — his words — to punish compliance with congressional subpoenas that serve an investigation into an effort to overturn U.S. democracy through mob intimidation and violence.
It should be noted that the select committee hasn’t even issued any subpoenas along these lines. It has only directed the companies to preserve records in preparation for possible ones later.
What’s more, despite McCarthy’s lurid claims about potential lawbreaking by these companies, subpoenas targeting private entities are in fact routine in congressional investigations.
“These companies have a legal obligation to preserve the records," ethics expert Norman Eisen told me. "The committee has the legal authority to get this critically important evidence.”
So McCarthy’s line is utterly bogus. But Democrats cannot stand by in the face of this naked effort to use the threat of a GOP majority to cripple an accounting into an effort to wield mob violence to thwart a legitimately elected government from taking over.
One option for Democrats would be to refer McCarthy’s threat to the House Ethics Committee, Eisen says, under a House rule against bringing discredit on the House. That could result in punitive action, such as censure or a fine.
Indeed, Eisen notes that if the Ethics Committee investigated McCarthy’s threat, it could conceivably find more, by using its power to question McCarthy about his true intentions or even locating evidence that could implicate McCarthy further.
This would require analyzing whether McCarthy’s threat is protected as congressional speech and debate, and if it is not, whether it runs afoul of any federal laws, such as the one prohibiting obstruction of congressional investigations, Eisen says.
That’s what the Ethics Committee should try to determine, Eisen notes, adding that depending on what else is found, a referral to law enforcement cannot be ruled out.
“If the Ethics Committee undertakes an investigation and finds additional evidence that McCarthy is strong-arming these companies or their lobbyists directly, it’s not out of the realm of possibility that they could make a referral to DOJ,” Eisen told me.
“I see it as clear obstruction of justice,” Rep. Eric Swalwell (D-Calif.) told me. “He’s telling the telecommunications companies to not honor a lawful subpoena, or there could be some penalty down the line.” Swalwell said a referral to the Justice Department should be considered.
Now consider the larger context. This threat comes amid a climate in which some House Republicans are relentlessly downplaying the seriousness of the insurrection, and others have taken to describing the Jan. 6 rioters as akin to victims and heroes.
On some level, many House Republicans plainly think the underlying cause of the rioters was righteous and just, even if they publicly condemn the violence itself. All this comes as Republicans are already pressuring McCarthy to prepare to impeach Biden on invented pretexts, showing that a GOP House would nakedly abuse its power to slake the Trump Rump’s desire for vengeance over 2020.
What’s more, Republicans themselves are implicated in the insurrection. McCarthy may be questioned about screaming at Trump to call off the rioters. Rep. Jim Jordan (R-Ohio) may be questioned about a Dec. 21 meeting with Trump about subverting Biden’s electors in Congress.
And Democrats say the phone records they may seek could include those of lawmakers, possibly Republicans who talked to Trump in the leadup to and during the violence.
So McCarthy’s threat is really an effort to protect Republicans themselves from accountability. It’s also an effort to carry forward a coverup designed to preserve the myth that a virtuous set of motives undergirded the worst outbreak of U.S. political violence in recent times.
In that context, it’s easy to see how a House GOP majority could use its investigative powers in 2023 to exact retribution against companies that cooperate with the Jan. 6 investigation, even if Democrats still controlled the White House and Senate.
“We ought not to be desensitized to the horrifying implications of what the highest-ranking Republican in the House has suggested,” Stephen Vladeck, a law professor at the University of Texas at Austin, told me. “We ought to be universally condemning that kind of blatant extortion.”
