The decision by the committee investigating the Jan. 6 US Capitol insurrection to slap House GOP leader Kevin McCarthy and four other Republican lawmakers with subpoenas threatens to plunge Congress into deeper division.
No one could recall a committee other than ethics panels trying to force the testimony of colleagues, and the decision risks a near-term legal clash and long-term political reprisals.
“We’re in a new chapter,” said Thomas Spulak, a King & Spalding LLP partner who served as staff director to the House Rules Committee and later as general counsel to the chamber in the 1990s.
Members of the investigatory panel said they are under pressure to complete their work and still need critical information from Minority Leader Kevin McCarthy and four other allies of former President Donald Trump about the insurrection.
“It’s a reflection of how important and serious the investigation is and how grave the attack on the Capitol was,” said committee Republican Liz Cheney of Wyoming.
Cheney and Adam Kinzinger, the nine-seat panel’s only other Republican, and Democrat Jamie Raskin of Maryland were the committee members leading the push to subpoena lawmakers.
Kinzinger is not running for re-election but Cheney is locked in a competitive August primary battle with a candidate backed by Trump and McCarthy. People familiar with the discussions said by early this week the entire committee agreed the seriousness of the attack required the move, despite any tensions between Cheney and McCarthy.
Experts say they can recall no committee other than the Senate and House ethics panels ever subpoenaing a member of Congress. The decision presents risks of new levels of acrimony within the Capitol itself — and likely retribution from a future Republican majority.
So far, the panel has conducted or taken more than 1,000 interviews and depositions, and gathered more than 100,000 documents, and is now arranging eight public hearings for June. A final report is planned for early fall — before the November mid-term elections.
But McCarthy — who could ascend to the speakership next year if Republicans win the House majority — and GOP Representatives Jim Jordan, Scott Perry, Mo Brooks and Andy Biggs are signaling they will not cooperate.
“It seems as though they just want to go after their political opponents,” McCarthy complained on Thursday.
For Jordan, deciding whether to comply comes with added wrinkles. As the top Republican on the House Judiciary Committee, he would likely become chairman of the panel and has indicated he is already already planning what investigations to launch if his party takes power. His snubbing a congressional subpoena now would almost certainly be cited by anyone he might later seek to summon as chairman.
All five have refused to voluntarily offer testimony though none said Thursday whether they would comply with the subpoenas.
Efforts to obtain judicial enforcement of these subpoenas, if the five Republicans refuse to cooperate, would likely result in extended litigation, even though many legal experts believe the subpoenas would be ultimately be upheld as lawful.
Washington lawyer Abbe David Lowell, who served as chief minority counsel to the House during the impeachment proceedings against President Bill Clinton, said that “there’s nothing that exempts a member of Congress just because he or she is a member of Congress.”
But by the time the matter works its way through the courts, the committee’s work could be long finished, and Republicans could hold subpoena power.
“Will they not use this? And I think the answer is, absolutely,” said Spulak. “I think the indications are already there — given the number of other things Democrats have done, such as removing members from committees and things like that — and Republicans have said we’re going to do the same thing”
“So, it’s very easy to imagine investigations in the future with a Republican-controlled Congress where investigators believe that sitting members of congress have relevant information. And they’ll subpoena them,” Spulak says.
Other legal experts, such as Irvin Nathan, who was the House general counsel from 2007 to 2010, suggests the way to avoid lengthy litigation is to take the subpoena issues to the House Ethics Committee to determine whether refusal to comply are violations of House rules and standards.
Precedents for that include the Senate Ethics Committee subpoenaing Senator Robert Packwood’s diaries in the mid-1990s and the House Ethics Committee subpoenaing Representative Charlie Rangel’s financial records.
For now, committee members claim they aren’t thinking about that.
“We are in a hurry, obviously now to complete all of the interviews that we can,” said Raskin. “It’s not a game. It’s not Parcheesi. It’s not checkers. This is a serious investigation.”
