House Minority Leader Kevin McCarthy (R-Calif.) responded to a subpoena from the House Select Committee investigating the Jan. 6, 2021, attack on the U.S. Capitol in a letter from his lawyer on Friday that questioned the committee’s legitimacy and requested more information from the panel.
“All valid and lawfully issued subpoenas must be respected and honored. 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,” McCarthy lawyer Elliot S. Berke said in an 11-page letter.
How we got here: The committee issued subpoenas to McCarthy and four other GOP lawmakers earlier this month — Reps. Jim Jordan (Ohio), Scott Perry (Pa.), Andy Biggs (Ariz.), and Mo Brooks (Ala.) — in a highly unusual instance of a committee compelling sitting members of Congress to testify. The panel had previously requested voluntary interviews with the members.
In announcing the subpoena, the committee said that McCarthy had information important to its investigation because he was in communication with former President Trump before, during and after the Jan. 6 attack.
McCarthy said in press interviews on Jan. 6 and after that he had talked to Trump and asked him to speak to the public to stop the attack.
McCarthy’s arguments: Much of the letter went through longtime GOP arguments that the committee is not acting with legitimate authority, in part because none of the sitting members were appointed by the minority leader.
Speaker Nancy Pelosi (D-Calif.) rejected two of McCarthy’s initial picks for the committee, prompting McCarthy to pull his other three recommendations and refuse to make any more picks.
The letter also argued that it is “difficult to fathom” how the committee is fulfilling any legislative purpose with its subpoena.
Berke asked for the committee to provide a list of topics that it wants to discuss with McCarthy and copies of documents it wants to ask McCarthy about.
He also asked several questions about the ranking member on the committee, questions apparently intended to poke holes in the committee’s legitimacy.
Where to go now: The minority leader and other GOP members subpoenaed by the select committee have limited options in how to respond to the demands.
If they choose not to comply, they can either challenge the panel in court as other potential witnesses have done or defy the subpoenas and risk House contempt proceedings and a criminal referral to the Justice Department. The tactics may succeed in prolonging the investigation in a midterm election year, but it’s far from certain the GOP House members would succeed in court.
Federal courts have repeatedly sided with the select committee in legal challenges against its investigative demands, upholding its subpoenas and the panel’s authority to issue them.
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