The Jan. 6 committee has asked 35 telecommunication companies, like AT&T and Google, to hang onto phone records and other information related to the Jan. 6 attacks. CNN reported some of those logs include Republican members of Congress, former president Donald Trump and his family.
House Minority Leader Kevin McCarthy (R-Calif.), who opposed creation of the Jan. 6 committee, warned those companies that they would be violating federal law if they handed over those phone records.
To which two experts who served as House lawyers say: What federal law?
No one really knows what McCarthy is talking about, said Stanley Brand, a former lawyer for the House of Representatives.
There isn’t a specific law stopping these companies from handing over information to Congress. In fact, it’s arguably the opposite. Law enforcement agencies subpoena private companies all the time to get information, Brand said.
Mike Stern, a former lawyer for the nonpartisan House counsel office, said there are probably laws that bar phone carriers from turning over records voluntarily.
But the committee isn’t asking the companies to do that. For now, they’re just asking the companies to preserve specific records in case they want them later. And if they do want those records, the Jan. 6 committee would almost certainly issue a subpoena for them.
And in the case of a subpoena, these telecommunication companies would almost certainly comply, regardless of whose records are being sought.
“Even if there is arguably a competing legal obligation or privilege that might trump the subpoena, I know of no principle that requires any subpoena recipient to risk contempt to protect the interests of their customers,” Stern said in an email.
McCarthy, whose office didn’t immediately respond to a request for comment, might be trying to conflate several different outcomes — preserving phone records (legal), with handing them over without a subpoena (maybe illegal but our experts couldn’t think of a specific statute explicitly saying so), or with handing them over with a subpoena (legal).
McCarthy also tried to expand this outward in an arguably hyperbolic claim that legal experts say isn’t rooted in reality: If Congress can obtain lawmakers’ phone records, no American is safe. The Democrats’ request, he said, “would put every American with a phone or computer in the crosshairs of a surveillance state run by Democrat politicians.”
That doesn’t make sense. Congress is asking for specific records from specific people for a specific reason. Lawmakers can challenge that reason in court, but it doesn’t mean Congress automatically has access to all Americans’ call logs.
The case brings to mind the time when Democrats in Congress were trying to investigate various aspects of Trump’s financial activities. Instead of asking him for his financial records, they went around him and issued subpoenas to accounting firms and banks. Trump sued to try to stop these companies from complying. The case went all the way to the Supreme Court, and eventually Congress got some of the records it requested.
That case was more about separation of powers — Congress investigating a president — than Congress investigating itself, which is an even more rare situation. (Trump is trying, probably unsuccessfully, to claim executive privilege to avoid scrutiny from the Jan. 6 committee.)
The Supreme Court said Congress can’t subpoena information to act as if they were law enforcement agencies. It has to have a legitimate legislative purpose. But Congress can investigate civil disturbances, Brand said, and the Jan. 6 insurrection probably fits that mold.
There is one legal avenue House Republicans can try to stop their records from going over to Congress, Brand said. It’s called the Perlman doctrine. If the committee issues a subpoena for these records, Republicans could step into court as third parties and argue against releasing the information. McCarthy could say that he has a legal or statutory claim to his call logs, and let the courts decide whether he or the Jan. 6 committee’s request take precedent. (This is hypothetical. We don’t know if McCarthy’s records are part of the request from the Jan. 6 committee.)
The second half of McCarthy’s statement was more ominous. While asserting vague legal protections, he also threatened these telecommunication companies with what seemed like political retribution if they complied with the law to hand over phone records: “If companies still choose to violate federal law, a Republican majority will not forget and will stand with Americans to hold them fully accountable under the law.”
The Washington Post reported that a number of these companies say they are planning to comply with the Jan. 6 committee anyway.