The select committee subpoena of Minority Leader Kevin McCarthy, Cheney’s former partner in the upper echelon of the House GOP, and four members of the Trump-aligned House Freedom Caucus puts the panel on the fast track to a court battle – increasing the prospects he blows past his self-imposed deadline to complete his work. If Reps. Jim Jordan (R-Ohio), Mo Brooks (R-Ala.), Scott Perry (R-Pa.), Andy Biggs (R-Arizona) or McCarthy sue to challenge the subpoenas, the fight could take months resolve with an uncertain outcome.
And the committee is operating on an accelerated schedule. About two weeks of highly anticipated public hearings on the insurgency and its preparations are scheduled, starting June 9. Members hope to present the bulk of their findings in what they say will be a multimedia presentation.
The chairman of the select committee, Rep. Bennie Thompson (D-Miss.), revealed Thursday that the nine members of the committee will each have a role in the organization of particular hearings, although they have not yet decided on the witness lists.
“We want to make sure that members have a specific responsibility in managing hearings,” Thompson said.
If one or more of the five House Republicans to appear legally challenges their subpoenas, it could create a legal showdown as the committee launches its carefully crafted schedule of public hearings. Congressional committees have previously subpoenaed lawmakers almost entirely in ethics investigations, but the committee’s Jan. 6 summons is a major effort to expand that power.
The five lawmakers were among the key promoters of Trump’s efforts to overturn the 2020 election results. All had crucial contact with Trump as Jan. 6 approached – and some spoke to him even as a violent mob of Trump supporters stormed the Capitol.
If Republicans choose to sue the select panel, they will likely do so on the grounds that its subpoenas violate the Constitution’s “speech or debate” clause, which protects members of Congress from legal repercussions for their actions and official lyrics. . They are also likely to mimic arguments raised by Trump allies in dozens of other lawsuits against select committee subpoenas. In these cases, resisting witnesses argued that the committee was improperly constituted because it lacked members nominated by the House GOP minority and that the subpoena was aimed at majority political opponents.
Federal courts have so far reacted coldly to these claims. Trump-appointed U.S. District Court Judge Tim Kelly recently rejected similar arguments in a lawsuit brought by the Republican National Committee, and at least two other judges have reached similar conclusions.
But even though the merits of a potential fight might tip in the select committee’s favor, the panel is running out of time to pursue what could become a drawn-out battle.
Representative Jamie Raskin (D-Md.), a select panel member, acknowledged that GOP lawmakers could use the courts to thwart the committee’s investigation, but said he hopes the legal force of a subpoena to appear would convince them to comply.
“For people who don’t take the rule of law seriously, a subpoena means no more than a post-it note,” Raskin said. “But for people who take the rule of law seriously, a subpoena has a certain legitimacy and moral force.”
And after facing stonewalling from GOP lawmakers, the subpoenas were a “natural progression” for the panel, Rep. Pete Aguilar (D-Calif.) said. He added: “This deserves our utmost attention, and we believe that in order to do this – in order to get the truth and hold people accountable – we have to take the plunge.”
Congressional investigators have already conducted hundreds of witness interviews and obtained thousands of documents, so while the panel failed to obtain testimony from all five GOP lawmakers, Thompson said their final report could suffice on its own.
“[The testimony] would bring additional clarity to the investigation. I hope they come,” he said. “But we are committed to producing a qualified document that will stand up to any scrutiny it will receive.”
The five Republicans were notably coy Thursday about whether they would comply with subpoenas. They called the select committee “illegitimate” and complained about its media strategy, but no one said whether they would take the panel to court.
Brooks, for example, essentially challenged Jan. 6 investigators to subpoena him earlier this month and vowed at the time to “fight on.” But on Thursday, after slamming the panel as a “witch hunt,” he said he would consult with the other four GOP targets about a unified response.
Democrats have acknowledged that their decision to subpoena Republicans was extraordinary. But they largely brushed aside any concerns they were setting a precedent that Republicans could turn against them if House control shifts next year, as is likely. On the contrary, Democrats said, the subpoenas reflected the seriousness of efforts to unravel an effort to overthrow the government.
“It’s not an escalation at all,” said House Majority Leader Steny Hoyer (D-Md.). “We should all be under an obligation to tell the truth in front of a committee that is seeking information important to our country, our democracy.”
“If the Democrats were trying to start an insurgency, then it would be fine” to subpoena them, said Rep. Pramila Jayapal (D-Wash.) “But that’s a very different situation.”