Let’s stipulate this upfront: A top lawmaker who is actively working to scuttle a full accounting into a violent insurrection has no business playing a potentially decisive role in the process by which the next presidential election is brought to its official conclusion.
House Minority Leader Kevin McCarthy is now signaling he won’t comply with a subpoena issued by the House select committee examining Donald Trump’s effort to overturn his presidential reelection loss. The California Republican will be joined in this defiance by other colleagues who played important roles in the attempted subversion.
The same Kevin McCarthy very well may be House speaker in 2024. If Congress doesn’t revise the antiquated process that governs how Congress counts presidential electors, he could play a critical role influencing which electors get tallied, potentially swinging the outcome.
McCarthy signaled in a Wall Street Journal op-ed Thursday that he and other Republicans will likely refuse cooperation with the Jan. 6 committee. This comes after CNN reported that two of those Republicans are objecting to the committee’s subpoena.
McCarthy’s case against the committee’s subpoena is pure nonsense. Along with co-author Rep. Jim Jordan (R-Ohio), who has also been subpoenaed, McCarthy insists in the op-ed that the subpoenaing is a “dangerous abuse of power" that "serves no legitimate legislative purpose.”
The idea that the subpoena serves no legislative end is demonstrably false. Committee members have already said the investigation will inform congressional deliberation over how to revise holes in the Electoral Count Act of 1887, which Trump and his co-conspirators sought to exploit to overturn his loss.
An effort to reform the ECA is already underway in the Senate, where Democrats and Republicans are working on such a proposal. This blows McCarthy’s excuses to smithereens.
There is no doubt that the Jan. 6 committee’s work has the capacity to assist this effort. Indeed, the very House Republicans preparing to defy the committee possess information that could help inform this and other legislative recommendations.
Take Rep. Scott Perry of Pennsylvania. The committee has subpoenaed him to learn about his role in trying to help Trump manipulate the Justice Department into creating a fake pretext for invalidating Joe Biden’s electors. That could shape reforms that would make such manipulation of the department harder.
Or take Jordan. The committee wants to know about his being neck-deep in the effort to overturn Trump’s loss by procedural means, including by pressing state legislatures to certify sham electors for Trump, justified by pretexts such as state “audits.”
Understanding the vulnerability of state-level actors to such corrupt pressure could help shape ECA reform. This will make it clear that reforms must account for a scenario in which corrupt state officials successfully certify sham electors for a presidential candidate who lost the state’s popular vote.
One way to do this: build in a new backstop role for the courts. If an effort to certify fake electors prompts a dispute in the state about which electors are the correct ones, the courts would determine which are legitimate. Congress would then be required to count those electors.
Under the current ECA, if a Republican-controlled state sends sham electors in 2024 and a GOP House led by Speaker McCarthy counts them, they would stand, potentially swinging the outcome. So the coverup of Trump’s 2020 scheme by the same GOP lawmakers who would be in a position to count sham electors next time underscores why reform is needed so badly.
“McCarthy and his allies in Congress are actively concealing the plot that almost succeeded due to the ECA,” legal scholar Matthew Seligman, an expert on the ECA, told me. “Anybody who would conceal their own role in such a scheme can’t be trusted to count the right electors next time.”
It’s true that the committee’s subpoena of GOP House members is an extraordinary event. But the information that those members are concealing has to do with an even more extraordinary event.
Consider McCarthy himself. He’s refusing to divulge information about his direct communications with Trump at the very moment Trump was essentially weaponizing a mob to intimidate his vice president and GOP lawmakers into subverting the electoral count, to keep himself in power illegitimately.
How can the person who won’t disclose this information to the country be given outsize control over the next electoral count in a scenario where a state-level effort to certify sham electors could succeed?
“It’s like putting the bank robbers in charge of counting money at the bank,” Seligman told me. “This shows reform is urgent.”
Let’s be ultra clear: The events around Jan. 6, 2021, were all about trying to overturn our constitutional and political order by subverting the count of electors, first through extraordinary procedural corruption and then through violence.
McCarthy is trying to scuttle a reckoning of those events, mainly because it threatens his bid for speaker. If he gains the power that comes with that role, he will be poised to play a critical role in the next count of electors.
That’s absurd and dangerous. It can’t be allowed to stand. But without ECA reform, it very well may become a reality.