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The House January 6 Committee has, finally, subpoenaed five of its fellow members of Congress. Issuance of the subpoenas is a bold and unprecedented move – though it would’ve been a hell of a lot bolder six months ago, when the Committee could’ve actually enforced them. Given their belated arrival, the subpoenas are a suboptimal – but still, on balance, sensible – strategic play.
Five Republican House members have now received subpoenas, all for good reason. Representatives Kevin McCarthy and Jim Jordan spoke directly with Donald Trump on January 6. (McCarthy, according to his own words captured on tape a few days later, claimed that Trump himself had acknowledged some responsibility for the Capitol attack.) Representative Scott Perry tried to run a coup inside DOJ, aiming to abuse the Department’s institutional credibility by having it endorse false election fraud claims. Representatives Andy Biggs and Mo Brooks helped spread the lie of election fraud, and attended various pre-January 6 planning meetings. Brooks, you may recall, screeched at the “Stop the Steal” rally immediately before the riot, “Today is the day American patriots start taking down names and kicking ass.”
Keep in mind: the term “subpoena” sometimes carries an accusatory edge, but technically it’s nothing more than a formal command to give testimony. A subpoena doesn’t necessarily mean the recipient has done anything wrong; it simply means they may be a witness with relevant testimony.
Of course, the Fab Five aren’t quite taking it that way. In response to an initial round of polite, informal invitations in January, McCarthy and Jordan responded with angry, non-responsive bluster that amounted to, essentially, we have nothing to hide, but we don’t like the Committee, so we’re gonna hide. Look for the same response, even now that the Committee has upped the ante by issuing formal subpoenas.
The Committee now has two options to enforce the subpoenas, or to punish noncompliance. The problem is that, practically, it’s simply too late to go down either road.
First, the Committee can go to a federal district court and seek an order from a judge compelling McCarthy and company to comply. (If they then continue to refuse, they can be held in contempt and, in an extreme scenario, locked up.) The problem is that even if litigation moved at light speed, it would take at least a few months to complete; keep in mind, the recipients can and almost certainly would appeal if they lost at the trial court level. There’s simply no way the Committee can complete litigation by the time public hearings kick off in early June, a few weeks from now.
The Committee also could vote to hold any subpoena-defiers in contempt of Congress. That would send the matter over to DOJ, which would decide whether to prosecute. Even if this approach worked, it would punish the subpoena-defiers, but it would not force them to testify. In any event, it’s doubtful DOJ would prosecute, and it’s virtually impossible they’d make such a decision within the next few weeks. Exhibit A: Mark Meadows, whose contempt referral has now been sitting with DOJ for over five months. (Exhibits B and C: Dan Scavino and Peter Navarro, also languishing at DOJ without action for six weeks and counting.)
The common theme here, you’ve surely noticed, is time – and the Committee is just about out of it. Why, then, did the Committee wait so long? They began serving subpoenas eight months ago, in September 2021. Why are they subpoenaing their fellow members of Congress only now, less than a month away from the start of public hearings?
It can’t be that the Committee simply lost track of the clock. They know what they’re doing, and they set the June schedule for public hearings. The more likely answer, in my view, is that the Committee has no intent to go to the mattresses on these subpoenas. Serve the subpoenas, sure. Make clear that the recipients’ testimony is necessary and important, check. But duke it out in the courts, or in a potential prosecution? Pass.
Let’s be clear here: primary fault lies with McCarthy and his cohorts. They’re all, at an absolute minimum, witnesses. Their blanket refusal to testify says much about their state of mind, their understanding that they witnessed (and perhaps committed) inexcusable acts on and around January 6. Now they’re hiding the truth from their own colleagues, and the American public.
The Committee, for its part, can rightly be blamed for dragging their feet to the point where they effectively cut off their ability to enforce their own subpoenas. But all fault is not created equal. It’s one thing to place yourself in a bad position to enforce compliance, as the Committee has done; it’s another thing, and far worse, to defy lawful subpoenas and to hide the truth about an attack on our democracy, as McCarthy and the other recipients have done.
So, yes, the Committee could have been more aggressive and more proactive. I’ve written several times in this space, over many months, that the Committee should not give special consideration to other members of Congress by refusing to subpoena them. But we also don’t live in fantasyland. Congress is inherently political – breaking news – and they choose their battles strategically. It’s significant that the Committee has, for the first time in modern history, subpoenaed their congressional colleagues. That’s a powerful statement: you have information about an attack on our democracy, and we demand it.
Even if the Committee ultimately can’t obtain testimony from the Fab Five – and that seems all but assured – the subpoenas will serve a useful argumentative purpose. Now the Committee can argue, “We asked them to testify. They refused. We subpoenaed them. They still refused. They could and should have come in here and told us all what they know. But instead, they’re hiding.” Keep count of how many times the Committee members make that point during the hearings next month. It’s a fair and resonant argument.
Finally, let’s remember that, even if McCarthy and company refuse to testify, they will remain very much in the Committee’s crosshairs. Ok, McCarthy likely won’t take an oath and tell what he knows; the Committee still has recordings of him discussing his belief that Trump bore responsibility for the attack, and that Trump had admitted as much. Maybe Jordan won’t speak to the Committee; they still have his texts urging Mark Meadows to try to steal the election by having Mike Pence unilaterally reject certain electoral votes. Perry might clam up; but DOJ witnesses surely can testify to his attempts to infiltrate and weaponize the Department. McCarthy and company may not appear in person at the hearings, but their own words will resonate – perhaps even more powerfully in their absences.
The Committee, and the American people, deserve the full truth. We may not ever get it, but we can still get darn close.