The Congressional Committee investigating the January 6, 2021, attack on the US Capitol by a mob supporting former President Donald Trump, took the extraordinary step of issuing subpoenas to five sitting members of the House of Representatives, demanding that they, to their knowledge testify about. The events leading up to the attack, the attack itself and its aftermath.
The delegates receiving the summons, all Republicans, are Minority Leader Kevin McCarthy of California, the senior-most Republican in the House; Jim Jordan of Ohio; Scott Perry of Pennsylvania; Andy Biggs of Arizona; and Moe Brooks of Alabama.
All five members were asked to testify voluntarily, but declined to do so, the committee chair, Democrat Representative Benny Thompson of Mississippi, said in a statement.
“The Select Committee has learned that many of our colleagues have information related to our investigation into the January 6 attack and its events,” Thompson said. “Before we hold our hearing next month, we wanted to provide members with the opportunity to voluntarily discuss these matters with the committee.
“Sadly, the individuals who received the summons today have refused and we are compelled to take this step to ensure that the committee uncovers the facts relating to January 6th,” Thompson said. “We urge our allies to obey the law, do a patriotic duty, and cooperate with our investigation as hundreds of other witnesses have done.”
The committee is investigating the attack on the Capitol, during which a mob attempted to prevent Congress from attesting to President Joe Biden’s victory in the 2020 presidential election. It is also looking into efforts to convince various state and federal officials to falsely claim that the election was tainted by fraud.
In its release, the committee explained why it wanted to speak with each of the five members.
McCarthy, said McCarthy, was in communication with former President Trump and White House staff before, during and after the attack. Evidence has been made public that McCarthy said he had heard Trump admit that he was personally responsible for some of the attack.
Jordan, the committee said, was in contact with the president and the White House throughout, during discussions about “reversing” the election.
The committee said that Perry, among other things, was “directly involved in efforts to corrupt the Justice Department” by installing a Trump loyalist as acting attorney general.
The committee said Biggs was involved in planning the January 6 events and bringing the protesters to Washington. He participated in pressuring state officials to reverse the election results and reportedly sought a pre-emptive pardon from President Trump.
The committee said, Brooks participated in encouraging the attack on January 6 and described conversations in which the former president pressured him to “cancel” the election results. Brooks and his staff also pressured then-Vice President Mike Pence to refuse to illegally accept electoral votes in some states.
next step unclear
Letters sent to five congressmen include dates for them to appear before the committee later this month, but whether they will comply is an open question. Till now, the committee has seen many of its summons being ignored.
Several aides to former President Trump, including some former White House staffers, have refused to voluntarily testify before the committee, and when summoned, have refused to comply, often citing executive privilege. However, the president’s ability to keep some internal White House communications confidential. Some now face possible criminal prosecution, as the committee has referred them to the Justice Department.
Steve Bannon, a former White House chief strategist and senior adviser, was indicted last November and faces trial on charges of contempt of Congress.
Others who have declined to testify include former White House chief of staff Mark Meadows, former White House deputy chief of communications Dan Scavino and former Office of Trade and Manufacturing Policy director Peter Navarro. The committee has referred all three to the Justice Department.
It is unclear whether federal prosecutors will indict Meadows, Scavino and Navarro. His claims of executive privilege may have carried more weight because he served in the White House before, during and after the attack on the Capitol.
In the early stages of the investigation, Meadows was cooperating with the investigation and provided text messages sent and received by him in the days around January 6. The committee has used these messages to establish who was in contact with the former president during the attack. Meadows has since withdrew its cooperation.
In theory, the House has the legal authority to arrest individuals who disobey Congressional summons. The House Sergeant-at-Arms may detain any member who refuses to appear before the committee.
In practice, however, that right is virtually never exercised, and doing so would set a precedent that Democratic leaders in the House would almost certainly prefer to avoid.
It is also unclear whether the Justice Department will induce current members of Congress to refuse to comply with its summons, so it is not certain whether the threat of criminal liability will compel the five summoned lawmakers to attend.
The committee may choose to take its case to civil court. However, it aims for a hearing presenting its findings to begin on June 9. Any civil suit is bound to drag on for at least months.
Since the committee’s formation last year, legal experts have been wondering what would happen if it issued subpoenas to current members of Congress.
“Will these summons face legal scrutiny?” University of Baltimore law professor Kimberly Wehle wrote the Atlantic in August. “There is no established historical or legal precedent regarding the power of Congress to enforce summons against members of Congress.”
There will be strong arguments in favor of the committee’s position, she said, but it may take time to justify its claims.
“Presumably, GOP members reluctant to receive subpoenas from the selection committee would welcome a court battle, as litigation would delay the committee’s work by months and any decision would be appealed to the Supreme Court,” Wehle wrote.
Appealing to the Supreme Court will take time – something that the committee does not have in abundance. The mid-term elections are likely to pass control of Congress to the GOP, which will almost certainly disband the committee and put an end to its investigation.