Is the January 6 inquiry unprecedented?

The House Select Committee to Investigate the January 6 Attack on the United States Capitol has subpoenaed five Republican members to appear before it next week for the taking of depositions about their knowledge of and actions relating to the events of that day.  

The aim of the violent mob assault was to stop the electoral ballot count for president and vice president then taking place in the House Chamber – hence the name of the rally preceding it, “Stop the Steal.” The breach of the Capitol was the first of its kind since the British ransacked and burned the building in the War of 1812. This time the invading forces were not foreign soldiers but American civilians, intent on reversing the election results and keeping President Trump in the White House.   

The select committee asserts that the five subpoenaed members, including House Republican Leader Kevin McCarthy (Calif.), have information that is integral to completing its investigation. The downside of such a dramatic tactic is that it tends to tar everyone involved in various stages of the day’s events, from the planning and staging of the morning rally behind the White House, at which the president spoke, to the march up the Hill, and to the ensuing invasion of the building by several hundred of the thousands of protesters. Put another way, there is a danger of conflating legitimate First Amendment activities like the rally, march and peaceful protests, with the clearly criminal insurrectionist activities that followed.  

The five subpoenaed members had previously been invited to voluntarily appear before the select committee to answer questions but had repeatedly refused to respond to the invitations. House Republicans had withdrawn from the process at the very start after Speaker Nancy Pelosi (D-Calif.) rejected two of the Republican leader’s five nominees to the committee. In response, the GOP leader withdrew his other three picks. Pelosi subsequently appointed Rep. Liz Cheney (R-Wyo.) as vice-chair, and Rep. Adam Kinsinger (R-Ill.), neither of whom had the backing of their party.   

While the resolution creating the committee gave the Speaker exclusive authority to appoint all the members, it was with the precondition of first consulting with the minority leader on the five minority picks. With the minority’s withdrawal of cooperation and participation, the Speaker’s decision to move forward unilaterally was clearly unprecedented, even if technically in conformance with the resolution.     

If the five subpoenaed Republican members refuse to comply with their subpoenas next week, Select Committee Chairman Bennie Thompson (D-Miss.) has suggested the committee may refer the matter to the House Ethics Committee for possible punitive recommendations to the House. The options for punishment range from reprimand or censure, to loss of committee seats, and even to expulsion. If the bipartisan Ethics Committee does not act, the Rules Committee can give privileged consideration to an unreported punishment resolution, as was done earlier this year in stripping a Republican member of her committee assignments (H. Res. 72, Feb. 4, 2021).  

Another select committee member, Rep. Jamie Raskin (D-Md.), a former constitutional law professor, has suggested that the resisting members could be cited for criminal contempt of Congress by the House as was done with Trump advisor Steve Bannon and chief of staff Mark Meadows. That would throw the ball into the Department of Justice’s court for possible prosecution, though prosecution is discretionary with the department (it still has not moved on the Meadows’ contempt citation).  

A cursory review of House precedents does not reveal any instances in which a member of Congress has been cited for criminal contempt of Congress for any reason, let alone for refusing to comply with a deposition subpoena. The criminal contempt option, if anything, would be a derogation of the House’s duty under the Constitution to punish its own members for disorderly behavior.  

The work of the select committee is a serious and grave undertaking that deserves maximum respect and cooperation from everyone called upon to help it answer the questions of why and how the January 6 riot happened, and how to prevent a recurrence of such incidents. The conundrum presented by the five subpoenaed members can best be resolved by the committee negotiating a quiet settlement with the members in which the subpoenas are implicitly withdrawn in return for the targeted members at least providing written answers to the questions of the committee.   

The most important thing for the committee at this point is to wrap-up its work in as thorough a manner possible this year. Both parties in the House stand to gain from putting the events of January 6 behind them so they can move on to tackling the challenges confronting them in the next Congress.   

Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center.  He is former staff director of the House Rules Committee and author of “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own.