This week, the House committee investigating the Capitol riot tore into claims made by Rep. Kevin McCarthy (R-Calif.) and others in response to the panel’s subpoenas. The committee has subpoenaed five Republican members of Congress: McCarthy, Jim Jordan (Ohio), Mo Brooks (Ala.), Andy Biggs (Ariz.), and Scott Perry (Pa.) — most of whom have in some form resisted the subpoenas.
“Leader McCarthy and other Members who have been served subpoenas are hiding behind debunked arguments and baseless requests for special treatment,” the committee said on Twitter Friday. “Claims challenging the composition of the Select Committee and the legitimacy of its subpoenas have repeatedly failed in the courts. The refusal of these Members to cooperate is a continued assault on the rule of law and sets a dangerous new precedent that could hamper the House’s ability to conduct oversight in the future. Chairman [Rep. Bennie Thompson (D-Miss.)] will formally respond to these Members in the days ahead.”
Before moving forward — and before any cooperation — a recent letter from a lawyer for McCarthy indicated he wants an explanation of the topics and documents committee members intend to use in a deposition, an overview of the committee’s argument for the legality and constitutionality of the process, a limit on questioning time to just an hour each for minority and majority counsel, and more. That letter, from attorney Elliot S. Berke, also claimed (as summarized by CNN) that the committee “did not have the necessary input from House Republicans in order to issue subpoenas to members of Congress.” The reason the committee doesn’t have further input from House Republicans is because McCarthy punitively withdrew all his selections for the panel after House Speaker Rep. Nancy Pelosi (D-Calif.) rejected a couple of them. And since then, it’s been concluded in federal court that the committee is nonetheless a legally legitimate entity.
Such a conclusion emerged in court proceedings surrounding a subpoena from the committee for records related to email fundraising campaigns of the national Republican Party. “[T]he House views the Select Committee to be duly constituted and empowered to act… even though the Select Committee has only nine members,” Judge Timothy Kelly observed. He subsequently referenced the full House’s repeated adoptions of contempt findings made by the committee as evidence the chamber views it as legitimate. Kelly also upheld the notion of Rep. Liz Cheney (R-Wyo.) as the ranking member — it’s been argued she couldn’t legitimately serve in that role because of her appointment by Pelosi. “[T]o the extent there is any uncertainty about whether she fits the bill, on this record the Court must defer to the Select Committee’s decision to treat Representative Cheney as the ranking minority member,” Kelly said.
Berke, meanwhile, also claimed that “the Select Committee is clearly not acting within the confines of any legislative purpose” — but Kelly, who it’s worth noting is a Trump appointee, rejected that argument too, although he did so in the distinct context of the battle over the GOP-tied documents. That “subpoena’s valid legislative purpose is apparent enough to sustain it against this challenge,” Kelly found.
