The Washington PostDemocracy Dies in Darkness

Opinion The McCarthy subpoena is a reminder that democracy is in grave danger

House Minority Leader Kevin McCarthy walks to his office Thursday. (J. Scott Applewhite/AP)
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In an extraordinary move, the House Jan. 6 committee on Thursday subpoenaed five Republican members of Congress, including House Minority Leader Kevin McCarthy (Calif.), potentially the next House speaker. This audacious action might invite partisan payback when Republicans next hold the chamber. Yet Mr. McCarthy and the other subpoenaed lawmakers are key witnesses to an episode in which the U.S. government itself was in direct danger. They should not have had to be subpoenaed to reveal what they know.

Mr. McCarthy’s testimony in particular could reveal then-President Donald Trump’s state of mind and whether he tried to use a mob on Jan. 6, 2021, to threaten Congress into upending his 2020 election loss. It is also possible the committee could turn up wrongdoing on the part of some of the subpoenaed lawmakers themselves.

For these reasons, it would be unsurprising if they defy the subpoenas, which would mean the House might pass the matter to the Justice Department. The GOP lawmakers might argue that they are protected under the Constitution’s “speech or debate” clause, which shields certain official actions. But chances are slim this argument would be tested in court before the November election, at which point Republicans may well retake the House and end the Jan. 6 probe.

In other words, the subpoenas’ practical impact could be little more than a mild sting for Mr. McCarthy and the other subpoenaed lawmakers — and the establishment of a precedent that Republicans might use to subpoena Democrats about less compelling matters down the road.

Still, it is hard to fault the committee for trying. The Jan. 6 committee is unique. It is not investigating some everyday act of political wrongdoing but a direct assault on U.S. democracy. Mr. McCarthy has at every turn sought to protect Mr. Trump and other Republicans from scrutiny for their roles in the Jan. 6 horror. Mr. McCarthy’s lack of patriotism — and a spine — led the committee to its decision, though it is likely to be used as an illegitimate justification to harass lawmakers in the future.

The Justice Department and the courts should move quickly if the House asks them to consider these subpoenas. They should also move faster in cases that are already pending. Former Trump adviser Stephen K. Bannon’s trial for defying a committee subpoena is not even scheduled to start until July.

This situation should be yet another reminder that U.S. democracy remains vulnerable to another attack as soon as 2024. Congress must update the 1887 Electoral Count Act, which prescribes how lawmakers tally presidential electoral votes, curbing the ability of the Kevin McCarthys and their ilk in Congress to argue that its vague language permits them to overturn presidential election results they do not like. A bipartisan group of senators led by Susan Collins (R-Maine) and Joe Manchin III (D-W.Va.) has been working on reforming the act. Their group plans to meet again later this month. They must hurry. As soon as January, Mr. McCarthy could be holding the speaker’s gavel.

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