McCarthy questions Jan. 6 panel’s legitimacy in response to subpoena

House Minority Leader Kevin McCarthy (R-Calif.) responded to a subpoena from the House Select Committee investigating the Jan. 6 attack in a letter from his lawyer on Friday that questioned the panel’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 an 11-page letter.

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.

House 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. It 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.

Despite McCarthy’s criticisms, 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.

Last year, the D.C. Circuit Court of Appeals rejected former President Trump’s lawsuit seeking to block the committee from obtaining White House records from the National Archives, ruling that lawmakers had a valid legislative purpose for seeking the documents.

And earlier this month, U.S. District Judge Timothy Kelly, who was appointed by Trump, rejected the Republican National Committee’s argument that the select committee is not a proper legislative entity under the House’s rules in a decision upholding a subpoena for the GOP’s fundraising records.

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 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.

Jordan responded to the subpoena with a similar letter earlier this week that berated the committee on a number of points, and asked for more information from the committee such as documents and communications in the committee’s possession that references him.

In a statement released later on Friday, select committee spokesperson Tim Mulvaney slammed McCarthy and others for “hiding behind debunked arguments and baseless requests for special treatment.”

“Claims challenging the composition of the Select Committee and the legitimacy of its subpoenas have repeatedly failed in the courts,” he added.

“The committee is working to provide the American people with answers about a coordinated scheme to overturn the 2020 election and a violent attack on our democracy so it can make legislative recommendations to ensure something like January 6th never happens again. The refusal of these Members to cooperate is a continued assault on the rule of law and sets a dangerous new precedent that could hamper the House’s ability to conduct oversight in the future.”

Mulvaney concluded the statement, saying that chairman Bennie Thompson (D-Miss.) will respond in the coming days.

Updated on May 30 at 9:39 a.m.