It comes as precisely zero surprise that House Minority Leader Kevin McCarthy (R-Calif.) and his GOP colleagues who have been subpoenaed by the Jan. 6 committee are resisting testifying. And it’s not clear under what circumstances the committee could even compel them to cooperate in time, given their investigation is due to conclude before the 2022 midterms.
But it’s worth a look at how McCarthy justifies his actions — a case that’s strained at times and relies heavily upon arguments that judges previously rejected. On Friday night, McCarthy posted an 11-page letter from his lawyer, laying out his reasoning. Essentially, it boils down to the idea that the committee is not properly constructed.
“Unfortunately, the words and actions of the Select Committee and its members have made it clear that it is not exercising a valid or lawful use of Congress’ subpoena power,” the letter states. “In fact, the Select Committee is not even operating in compliance with the rules its own members voted to put in place.”
It’s an argument that has been seeded and fertilized on the right since shortly after the Capitol insurrection — from the moment Republicans suddenly rejected a bipartisan commission modeled on the 9/11 Commission that their own McCarthy-appointed GOP colleague had negotiated. They’re now attempting to harvest the crop in some high-profile cases.
In the letter, McCarthy’s lawyer argues that committees generally have broad authority to investigate and issue subpoenas, but this one comes up short in a few ways: It doesn’t have 13 members and five Republicans, it doesn’t technically have a “ranking member,” and it purportedly doesn’t serve a “valid legislative purpose.”
The letter notes that the committee’s authorizing resolution states, “The Speaker shall appoint 13 members to the Select Committee, 5 of whom shall be appointed after consultation with the minority leader.” It notes that the committee had neither 13 members nor five Republicans. (This is because House Speaker Nancy Pelosi rejected two of McCarthy’s five picks due to their efforts related to overturning the election, and McCarthy later withdrew all five. Pelosi went on to appoint GOP Trump critics Liz Cheney and Adam Kinzinger.)
But this month, U.S. District Judge Timothy Kelly, a Trump appointee, ruled that this didn’t invalidate the committee. In a case involving the Republican National Committee, he said legal precedent suggests the word “shall” shouldn’t be understood to mean the committee must have those numbers to legally operate.
McCarthy’s letter also cites the lack of an official GOP “ranking member.” Cheney has been given the title “vice chair,” but the committee’s authorizing resolution describes areas in which the committee’s chair should work with a “ranking minority member.”
But again, a similar claim was rejected in the RNC case. Kelly wrote that Cheney’s technical title aside, “the Court must defer to the Select Committee’s decision to treat Representative Cheney as the ranking minority member for consultation purposes.”
Lastly comes a key phrase: “valid legislative purpose.” Republicans have long argued that the committee doesn’t serve one, and McCarthy does here, too.
His reasoning differs somewhat from the RNC’s. While the RNC essentially argued that the investigation was a pretext for harming Republicans, McCarthy’s lawyer scales that back somewhat. He merely argues that the committee has repeatedly said that it wants to tell the “story” of Jan. 6, 2021 — a noun several committee members have used — and that it is in search of crimes. Exposing things and serving as law enforcement, he says, aren’t valid legislative purposes.
This argument is more difficult to compare with past ones. But Kelly essentially ruled that whatever the committee aims to do or whatever ulterior motives it might have, that doesn’t matter as long as it has a distinct valid legislative purpose, which he said was “apparent enough.” And he wasn’t the first to rule that the committee has a valid legislative purpose; multiple judges have also rejected arguments to the contrary.
We noted at the time of Kelly’s ruling that the RNC’s argument on that count was pretty strained, and Kelly treated it as such, saying it did “not come close” to showing what the RNC maintained. Here, too, the words of the committee members are being stretched.
For instance, at one point the letter states, “Select Committee Member Jamie Raskin has stated, ‘We will expose every facet … and support the story of the worst presidential political offense.’” But a look at the citation reveals some, well, creative editing. Raskin didn’t connect those two thoughts so directly; in fact, he didn’t even write precisely those words or place them in that order.
In an April tweet, he spoke of exposing facets of Jan. 6 after the part about the “worst presidential political offense.”
“We now have evidence to support the story of the worst presidential political offense against the Union in American history,” Raskin said. “The @January6thCmte hearings in June will expose every facet of the assault against our democracy and Constitution on 1/6.”
Raskin has made it pretty clear that he thinks there was an offense here. But his reference to how the committee will “expose every facet” doesn’t so directly and necessarily refer to what Donald Trump did; it could be read much more generally, to describe the committee’s intent to thoroughly investigate all aspects of the insurrection. The letter also misquotes Raskin’s tweet, inserting a “We” in place of “The @January6thCmte hearings in June” and adding an “and” before “support.”
It should be noted that just because multiple judges rejected similar arguments doesn’t necessarily mean a future judge will reject these ones from McCarthy. Ultimately, though, the legal arguments here might be somewhat immaterial. The committee will struggle to get several Republicans’ testimony in time for a variety of reasons.
Still, it’s worth understanding how Republicans who have tried to undercut the committee’s legitimacy from the start are making their case. Here, it’s largely via warmed-over arguments that haven’t particularly worked for them in the past — at least in court.
This case probably will work, if only politically — and if only because it will delay the proceedings in a way that’s proved valuable for Republicans fending off Trump investigations.