Subpoenas are a real worry for lawmakers facing Jan. 6 questions

Lawmakers who may have been involved with the planning of rallies on Jan. 6 are coming under renewed scrutiny over their roles, teeing up questions of whether the committee investigating the attack on the Capitol may take the historic step of subpoenaing sitting members of Congress. 

A Sunday story from Rolling Stone didn’t directly tie Republican lawmakers to the violent assault, but two sources who are cooperating with the committee instead detailed multiple meetings with members of Congress to coordinate contesting the election results and plan the rallies that preceded the attack.

They outlined “dozens” of planning briefings, adding that those who either participated or sent top staffers include GOP Reps. Marjorie Taylor Greene (Ga.), Paul Gosar (Ariz.), Lauren Boebert (Colo.), Mo Brooks (Ala.), Madison Cawthorn (N.C.), Andy Biggs (Ariz.) and Louie Gohmert (Texas.).

Lawmakers on the committee have often repeated a refrain left over from the impeachments of former President Trump — that no one is above the law. Many have said that even subpoenaing the former president is on the table.

But with their very own colleagues, the Jan. 6 panel must walk a delicate line, balancing legal rights with political calculations.

“People who were involved in an armed attack don’t get immunity from an investigation just because they’re members of Congress. If they were involved in organizing and putting it together and not acting to stop the use of violence if they thought violence was coming — those are very worthy subjects of investigation by the Jan. 6 committee,” said Neil Eggleston, a lawyer at Kirkland & Ellis who also served as White House counsel to former President Obama and as counsel to the House committee investigating the Iran-Contra affair.

“I can’t think of a legal constraint on the committee from investigating the role of members of Congress. In some ways the constraints are probably more policy and political — they don’t tend to investigate each other,” he added. 

The committee has zeroed in on the planning of various rallies on Jan. 6.

It has subpoenaed a number of people associated with Women for America First, which organized the rally near the White House featuring Trump, as well as those associated with the Stop the Steal rally that secured a permit for the Capitol lawn.

The panel has also subpoenaed former White House chief of staff Mark Meadows, asking him to turn over information about his coordination with those involved in rally planning.

The committee also asked telecommunications and social media companies to retain documents with a nexus to Jan. 6 — including the communications of lawmakers. That pushed House Minority Leader Kevin McCarthy (R-Calif.) to issue a warning to companies that the GOP “will not forget” if they comply with the directive. 

“We knew immediately after the 6th these members were meeting with White House staff. They were not only vocal about objecting to the Electoral College; some spoke at the rally on Jan. 6,” a source close to the committee told The Hill.

“These members were always going to be a part of this investigation,” the source added.

Panels such as both chambers’ Ethics committees have clear subpoena power over lawmakers, though that has primarily been used to secure documents, not depositions, as the Jan. 6 committee has sought with other aides.

It’s possible that the committee could start by asking lawmakers to voluntarily speak with the committee, but it’s unclear Republican lawmakers would do so. All but nine House Republicans voted against censuring former Trump White House strategist Stephen Bannon for defying a subpoena when he failed to show for his slated deposition.

“This is terra incognita, and there seems to be little or no precedent for bringing a member before an oversight committee,” a former senior committee staffer for a panel with subpoena power told The Hill.

“My suspicion is that the bigger problem is this: What if [Jan. 6 committee Chairman Bennie] Thompson [D-Miss.] subpoenas McCarthy, for example, and the minority leader refuses to show? Is the sergeant-at-arms going to be dispatched to arrest him? Is [Speaker Nancy Pelosi (D-Calif.)] going to act to enforce the subpoena? The House is a powder keg right now, and the Speaker is a very smart person who has seen a lot in her decades on the Hill. She is going to think long and hard about using a process that is already freighted with politics and lacking ‘true’ bipartisan credentials as a vehicle to make her GOP colleagues appear in public as witnesses. It would set a precedent that would damage the institution and have severe repercussions on Democrats’ ability to enact their agenda.”

But Eggleston said such concerns over establishing a precedent are overblown.

“It hasn’t happened since the Civil War that there has been an armed insurrection against the government of the United States, so it’s not like this kind of thing happens very often. I don’t think it creates a floodgates problem because these are unusual circumstances,” he said.  

Republican lawmakers during the Bannon vote rallied behind McCarthy’s claim that it was an “invalid” subpoena, arguing the committee’s subpoena power is restrained by the need to have a legislative purpose, while other matters should be handled by law enforcement agencies.

“Those arguments as applied to this investigation don’t appear to hold water,” said Joshua Levy, a partner at Levy Firestone Muse who has taught a course on congressional investigations at Georgetown Law for more than a decade.

“The Jan. 6 committee’s purpose is not to conduct a criminal investigation. It is to conduct a congressional investigation about an attack on its property, members, staff and other employees, the transition of power, and the potential and actual ramifications for legislation, whether that’s the security of the Capitol, whether that’s the oversight of the executive branch and its involvement in any of the violent acts that occurred that day. The area of inquiry for this committee extends beyond what the DOJ [Department of Justice] is investigating for criminal prosecution.”

Levy and Eggleston agreed that the speech or debate clause — which bars questioning of members “in any other place” — would likely provide little protection for members seeking to skirt a subpoena. 

Eggleston said the clause is clear that members can therefore still be questioned by their own chambers, while any protections are “limited to legislative conduct.”

“What’s under investigation is the extent they assisted the insurrection and attack on the Capitol, and that is under no theory part of the legislative process,” he said. 

Levy said the clause is also not considered absolute, as courts have allowed members to be questioned on “conduct that did not fall within the sphere of legitimate legislative activity.”

“The clause by its own terms as a matter of law does not appear to bar a congressional committee from serving and enforcing a subpoena on a sitting member of Congress,” he said.

But he said the matter has not yet been tested before the courts and any litigation could drag out. 

“It could be possible that recipients of subpoenas decide that it’s worth the risk of contempt or engaging in some other kind of litigation to delay cooperation with the committee and play beat the clock,” Levy said.

“That is not a new tactic,” he added.