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Can the Jan. 6 committee get Republicans to talk using subpoenas?

House Minority Leader Kevin McCarthy (R-Calif.) could face a subpoena from the Jan. 6 committee for not cooperating. (Jim Watson/AFP/Getty Images)
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Besides understanding the level of President Donald Trump’s involvement in the Jan. 6, 2021, riot at the Capitol, the congressional committee investigating the insurrection most wants to know is if and how Republican members of Congress, at the highest levels, aided and abetted the attack.

But the committee is having to fight to get that information. They’ve asked five GOP members of Congress, including the top House Republican, Kevin McCarthy (Calif.), to voluntarily testify about their knowledge of Jan. 6. The Republicans declined.

So on Thursday, the committee subpoenaed their reluctant colleagues, issuing orders to compel these Republicans to testify. It’s very rare for a committee in Congress to try to force members to testify — and there are ways these Republicans can fight against testifying.

Here’s what’s happening:

Who does the committee want to talk to?

They’ve subpoenaed McCarthy and four close congressional allies to Donald Trump: Reps. Mo Brooks (Ala.), Andy Biggs (Ariz.), Scott Perry (Pa.) and Jim Jordan (Ohio). The committee wants to question them about conversations they had with Trump on Jan. 6 or any conversations they had with Trump allies leading up to that day. McCarthy in particular spoke with Trump during the riot.

What is a subpoena and why is it rare for members of Congress?

All five Republicans have refused to testify voluntarily, so the committee decided to take the rare and aggressive step of subpoenaing members of Congress.

Subpoenas are legally binding requests to testify; violating them can carry a fine or jail time. Trump adviser Stephen K. Bannon is going to trial this summer for ignoring a subpoena from the Jan. 6 committee. Former Trump White House chief of staff Mark Meadows could face charges, too, for ignoring his.

But when Congress issues a subpoena to a public official, it’s usually someone in the executive branch. Members of Congress are different. Until the Jan. 6 committee subpoenaed these lawmakers, it’s been an open question whether members of the committee can subpoena their colleagues. For all the fighting between parties on Capitol Hill, it’s almost unheard of for Congress to force its colleagues to testify. (With the exception of the Ethics Committee, which exists solely to police fellow House lawmakers.)

“I can’t, off the top of my head, recall a case in which a committee other than the Ethics Committee has subpoenaed a member of the House, ever,” said Stanley Brand, a congressional ethics expert who is representing former deputy White House chief of staff Dan Scavino before the committee.

The committee has apparently spent months trying to figure this out. “I don’t know what the precedent is, to be honest,” Rep. Adam B. Schiff (D-Calif.) told my colleagues last summer. The Washington Post’s Felicia Sonmez and Jacqueline Alemany report that the committee found some precedent with former congressman Charles B. Rangel (D-N.Y.), who was subpoenaed by a subcommittee and ultimately convicted of 11 ethics violations in 2010.

Mike Stern, a former lawyer for the nonpartisan House counsel office, says he thinks the House can subpoena its own members, given that the Ethics Committee does it regularly. The panel’s chairman, Rep. Bennie G. Thompson (D-Miss.), has repeatedly said that if the committee can do it, there would be “no reluctance to subpoena” members of Congress.

That raises the question of what happens if these lawmakers ignore a subpoena. Stern said the tools Congress has are the same it uses to pressure Trump allies to talk: Congress could hold them in contempt and ask the Justice Department to consider prosecuting them. The committee seems willing to travel down that road.

How these members of Congress could fight back

These Republican members of Congress have a few legal options, but they’re pretty narrow, and exist mostly to just delay things. “It’s sort of like they have 10 issues and are going to throw them up against the wall and see if any will stick,” Stern said. “It’s not likely that one will stick, but you never know.”

For example, these lawmakers could go to court to fight a subpoena by arguing that such a request is politically motivated. Maybe that could gain traction, given that the committee is made up of mostly Democrats. (There are just two Republicans on it.)

Jordan’s letter to the committee seemed to hint at this: “The American people are tired of Democrats’ nonstop investigations and partisan witch hunts,” he said, using Trump-like phrasing. Same with McCarthy: “It is not serving any legislative purpose,” he said in his statement.

But Brand said that would be a novel legal argument, and thus risky. “No court has recognized partisanship as a reason in and of itself” to let someone sidestep a subpoena, he said.

Plus, just this month in a separate case, a federal judge sided with the Jan. 6 committee over Republicans, ruling that the committee does have a valid purpose and is legitimately constructed.

Another long-shot idea is for these lawmakers to pull out the Constitution and argue that they are immune from being questioned about their work as lawmakers. That’s the “speech and debate clause.” But it specifically protects lawmakers from questioning in venues outside of Congress. The Jan. 6 committee was set up by Congress and made up of members of Congress.

Lawmakers could also argue that the committee, in subpoenaing members of Congress, creates a slippery-slope situation. “What would stop a committee from subpoenaing members of the opposite party to obtain a political advantage?” asked Brand, summarizing a potential argument. “That is why the Ethics Committee is evenly split — to prevent abuse of the minority by the majority.”

Committee members argue that they’re focused on a very narrow legislative purpose: find out why the attack on the Capitol happened, and what laws Congress can pass to prevent it from ever happening again.

Time is not on the committee’s side

Republican lawmakers could still win by tying things up in court. The committee is racing to put together its findings on the Jan. 6 attack and Trump’s efforts to overturn his election loss before the November midterm elections, when control of Congress is up for grabs. If Republicans win back control of the House, they could disband the committee — and potentially find some way to get retribution against the mostly Democratic lawmakers who subpoenaed them.

Besides fighting the subpoenas in court, the Republicans have other options.

McCarthy has warned telecommunications companies that they would be violating federal law if they handed over lawmakers’ phone records. But no legal expert we talked to could figure out what federal law he was referring to. More likely, it was an empty threat.

The Republican lawmakers also could tie up records requests in court. (Possibly by using their campaign funds for legal fees.) Trump’s doing that right now as the committee tries to get documents related to Jan. 6. It took Congress years to get Trump’s tax returns, and by then he was out of office.

This post has been updated with the latest news.