Subpoenas are a real concern for lawmakers facing Jan.6 questions

Lawmakers who may have been involved in planning the January 6 demonstrations are coming under renewed scrutiny over their roles, raising questions about whether the committee investigating the Capitol attack can take the historic step of subpoenaing members of Congress.

A Sunday story from Rolling Stone did not directly link Republican lawmakers to the violent assault, but two sources who are cooperating with the committee detailed multiple meetings with members of Congress to coordinate the challenge of the election results and plan the rallies that preceded the attack. .

They outlined “dozens” of planning briefings, adding that those who participated or sent senior staff included representatives of the Republican Party. Marjorie Taylor GreeneMarjorie Taylor GreeneGOP’s Efforts to Minimize the Danger of Capitol Riots Increase The Memorandum: Now What for Anti-Trump Republicans? Rep. Marjorie Taylor Greene Says She Will Meet With Trump ‘Soon’ In Florida MORE (Georgia.), Paul gosarPaul Anthony Gosar Anti-Trump Republicans target McCarthy, Scalise and other high-profile conservatives Democrats say Republican lawmakers implicated on January 6 should be ousted. (Ariz.), Lauren boebertLauren Boebert Anti-Trump Republicans Target McCarthy, Scalise, and Other High-Profile Conservatives The Hill’s Morning Report – Presented by Facebook – Budget Negotiators: 72 Hours and Counting Democrats Say GOP Lawmakers Implicated Jan. 6 Should Be Expelled PLUS (Colo.), Mo brooksMorris (Mo) Jackson Brooks Senate Republican Party Lining Up Behind Trump-Backed Candidates Mo Brooks Says He Would Be ‘Proud’ If Staff Helped Organize The Hill’s Morning Report January 6 Rally – Presented By Facebook – Budget negotiators: 72 hours and counting MORE (Ala.), Madison Cawthorn (NC), Andy Biggs (Ariz.) And Louie gohmertLouis (Louie) Buller Gohmert After 35 years, Congress should finally end the sentencing disparity between crack and powder cocaine Democrats say Republican lawmakers implicated on January 6 should be ousted Greene fined for third time for refusing to wear a mask on the Chamber floor MORE (Texas.).

Committee lawmakers have often repeated a refrain left over from the political trials of President TrumpDonald Trump Candidates Sue After Pennsylvania County Sent Hundreds Of Ballots To Wrong Addresses Harris Makes One Last Pitch For McAuliffe Overnight Defense & National Security – Biden Speaks On Afghanistan, Submarine Deals In Europe MORE – that no one is above the law. Many have said that even the ex-president’s summons is on the table.

But with its own colleagues, the January 6 panel must walk a delicate line, balancing legal rights with political calculations.

“People who were involved in an armed attack do not get immunity from an investigation just because they are members of Congress. If they were involved in organizing and arming and not acting to stop the use of violence if they thought violence was coming, those are very valuable topics of investigation by the January 6 committee, ”said Neil Eggleston, attorney for Kirkland & Ellis, who also served as a White House attorney for President ObamaBarack Hussein Obama Don’t Let China Distract Us From Russia Biden Appoints Sara Minkara As US Special Adviser On International Rights Of Persons With Disabilities Fox Poll Shows Youngkin Leads McAuliffe By 8 Points Among Likely Voters MORE and as counsel for the House of Representatives committee investigating the Iran Contra affair.

“I cannot think of a legal restriction for the committee to investigate the role of members of Congress. In some ways, the constraints are probably more political and political, they don’t tend to investigate each other. “

The committee has focused on planning several rallies on January 6.

It has cited several people associated with Women for America First, which hosted the rally near the White House with former President Trump, as well as those associated with the Stop the Steal rally who obtained a permit for the Capitol lawn.

The panel has also cited the former White House chief of staff. Mark MeadowsMark Meadows Jan. Committee 6 Grants Jeffrey Clark, Dan Scavino Madison Cawthorn Deferrals to Join House Committee on Freedom Financial self-negotiation is rotting our government MORE, asking him to provide information on his coordination with those involved in planning the rally.

The committee also asked telecommunications and social media companies to withhold documents linked to January 6, including communications from lawmakers. That pushed the House Minority Leader Kevin McCarthyKevin McCarthy Watch Live: McCarthy Holds Weekly Press Conference The Hill’s Morning Report – Presented by Facebook – Democrats have many obstacles ahead Anti-Trump Republicans target McCarthy, Scalise and other high-profile conservatives MORE (R-Calif.) To issue a warning to companies that the Republican Party will “not forget” if companies comply with the directive.

“We knew immediately after the sixth that these members were meeting with White House staff. Not only did they voice their opposition to the Electoral College, some spoke out at the January 6 rally, “a source close to the committee told The Hill.

“These members were always going to be part of this investigation.”

Panels like the ethics committees of both houses have clear subpoena power over lawmakers, though that has been used primarily to secure documents, not statements, as the Jan.6 committee has sought with other advisers.

It is possible that the committee could start by asking lawmakers to voluntarily speak to the committee, but it’s not clear that Republican lawmakers will. All but nine House Republicans voted against censuring Trump’s former White House strategist Steve BannonStephen (Steve) Kevin Bannon Jan. 6 committee grant deferrals to Jeffrey Clark, Dan Scavino The Sudden Danger of Democracy was an inside job Congress may be right to cite Bannon in contempt, but the courts would be wrong if prosecuted PLUS for defying a subpoena when you did not appear for your scheduled deposition.

“This is terra incognita and there seems to be little or no precedent for bringing a member before an oversight committee,” a former senior committee member of a subpoena panel told The Hill.

“My suspicion is that the biggest problem is this: what if [Jan. 6 committee Chair Bennie] Thompson (D-Miss.) Quotes McCarthy, for example, and the minority leader refuses to appear. Will the sergeant at arms be sent to arrest him? Will the speaker act to enforce the subpoena? The House is a powder keg right now and the Speaker is a very smart person, who has seen a lot in her decades on the Hill. He’s going to think hard about using an already politically charged process that lacks “true” bipartisan credentials as a vehicle to make his fellow Republicans appear in public as witnesses. It would set a precedent that would damage the institution and have serious repercussions on the ability of Democrats to implement their agenda. “

But Eggleston said such precedent-setting concerns are overblown.

“It has not happened since the Civil War that there has been an armed insurrection against the United States government, so it is not that this kind of thing happens very often. I don’t think it creates a gate problem because these are unusual circumstances, ”he said.

Republican lawmakers during the Bannon vote supported McCarthy’s claim that it was an “invalid” subpoena, arguing that the committee’s subpoena power is restricted by the need for a legislative purpose, while other matters must be handled by the subpoena. law enforcement agencies.

“Those arguments applied to this investigation don’t seem to hold up,” said Joshua A. Levy, a partner at Levy Firestone Muse who has taught a course on Congressional Investigations at Georgetown Law for more than a decade.

“The purpose of the January 6 committee is not to conduct a criminal investigation. It is to conduct an investigation of Congress into an attack on their property, members, staff and other employees, the transition of power, and the potential and actual ramifications of the legislation, either for the security of the Capitol, or for the oversight of the executive. Rama and his participation in any of the violent events that occurred that day. This committee’s area of ​​investigation extends beyond what the Justice Department is investigating for criminal prosecution. “

Levy and Eggleston agreed that the speech or debate clause, which prohibits questioning members “anywhere else,” would likely provide little protection to members seeking to evade a subpoena.

Eggleston said the clause is clear, therefore members can still be challenged by their own chambers, while any protection is “limited to legislative conduct.”

“What is being investigated is to what extent they helped the insurrection and the attack on the Capitol, and that is not, in theory, part of the legislative process,” he said.

Levy said the clause is also not considered absolute, as the courts have allowed members to be questioned about “conduct that does not fall within the sphere of legitimate legislative activity.”

“The clause, by its own terms as a matter of law, does not appear to prevent a congressional committee from serving and enforcing a subpoena on a sitting member of Congress.”

But he said the matter has not yet been proven in court and that any litigation could drag on.

“It could be possible that the recipients of the subpoenas decide that it is worth taking the risk of contempt or engaging in some other type of litigation to delay cooperation with the committee and play against the clock,” Levy said.

“That is not a new tactic.”

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