The five GOP members of the House who flouted subpoenas from the Jan. 6 committee may not be included in the panel’s criminal referrals but could see the matter punted to the Ethics Committee.
Lawmakers on the panel suggested that the Constitution ties their hands when it comes to recommending prosecution for the group.
But the committee can refer the matter within the House, which has its own processes for addressing the behavior of its members.
Rep. Jamie Raskin (D-Md.), a constitutional law expert and chairman of the panel subcommittee tasked with responding to the five members, pointed to a specific clause limiting the penalizing of lawmakers for actions they take through the course of their job.
“The Speech or Debate Clause makes it clear that Congress doesn’t hold members of Congress accountable in the judiciary or other places in the government,” Raskin said.
“Members of Congress are only held accountable through Article One in their own chambers for their actions.”
After months of being asked how they plan to deal with lawmakers who have since May ignored their subpoenas, it appears the task will likely fall to the Ethics Committee.
It’s a panel that has long been criticized as a toothless body, one that next year will have a GOP chair.
As a result, it could have little appetite to go after the five GOP members the select committee determined “have information relevant to our investigation into the attack on January 6th and the events leading up to it.”
The list includes House Minority Leader Kevin McCarthy (Calif.), and Reps. Scott Perry (Pa.), Jim Jordan (Ohio), Andy Biggs (Ariz.), and Mo Brooks (Ala.).
Raskin’s comments indicate that the Republican members won’t be included in a list of criminal referrals the panel plans to send to the Justice Department, a recommendation on prosecutorial decisions still wholly left to the department.
A referral to the Ethics Committee would likewise be largely symbolic.
“A lot like the Jan. 6 committee, they can’t indict anybody. They can’t bring charges against anybody. They can issue a report basically wagging their finger and admonishing people,” said Dylan Hedtler-Gaudette, government affairs manager at the Project on Government Oversight.
“That’s about the extent of what they’re able to do. And that’s only if they choose to do that.”
Hedtler-Gaudette said the ethics panel is plagued by “collegiality considerations,” with members often hesitant to police their own, including those who they may need to work with on other legislation.
Craig Holman, government affairs lobbyist for Public Citizen, said the committee can often be a black box.
“They’ve got to work with everybody that they have to judge,” he said. “So traditionally, like the Senate Ethics Committee, they have done very little, mostly just sweeping complaints under the rug. And they operate in confidentiality. And so no one really knows what happens.”
Holman said the Jan. 6 committee’s referral could put some pressure on the ethics panel to be more transparent, given the public nature of the possible referrals.
“That sort of forces the House Ethics Committee into providing a public response,” Holman said, even if just to explain why they didn’t pursue the matter further.
The evenly split distribution on the committee means Democrats would need at least one Republican to side with them in advancing it — a significant initial hurdle.
And even if the panel did decide to take up the matter, Holman said it’s hard to see them doing anything beyond issuing a letter of reproval.
Perhaps the biggest consequence the Jan. 6 committee can doll out is shining a spotlight on the GOP members’ behavior — a public shaming that may mean little.
“If [Congress] were operating in the way that it was designed to and should, then yes, I think the members who were being referred would care and would feel some kind of a shame about it,” Hedtler-Gaudette said.
“In today’s world, I think it’s just going to be spun as, ‘Oh, this is just a partisan attack. It’s all about these people hating Trump and trying to go after him through us, who are his allies in Congress.’ … I don’t think there’s going to be any amount of contrition or introspection on the part of the people who are being referred. I suspect that it’s just going to be shrugged off the same way they’re sort of shrugging off the Jan. 6 committee.”
There is still the remote possibility that the Justice Department could prosecute the members.
While members of Congress can’t be held liable for their speech on the floor, the department could determine their actions in the weeks leading up to Jan. 6 were well outside the scope of their official duties.
“These members include those who participated in meetings at the White House, those who had direct conversations with President Trump leading up to and during the attack on the Capitol, and those who were involved in the planning and coordination of certain activities on and before Jan. 6,” the committee wrote in a press release announcing the formal subpoena of the members after calls for voluntary interviews went unanswered.
For Perry, that involved conversations with the former president and Justice Department lawyer Jeffrey Clark, who Trump weighed installing as attorney general so he could forward investigations into his baseless claims of election fraud.
Jordan attended multiple meetings discussing various strategies for keeping Trump in office after he lost the 2020 election.
The Justice Department’s own Jan. 6 investigation has appeared to pick up steam in recent weeks, with Trump White House attorneys being called before a grand jury to provide additional testimony and a flurry of new subpoenas sent last month, including those asking local officials about any contact with 19 different Trump campaign staffers and associates.
Some of those same names — like Trump lawyers Rudy Giuliani and John Eastman — could be among those included in the list of criminal referrals the Jan. 6 committee makes to the Justice Department.
Any prosecutorial decisions will rest with recently appointed Special Counsel Jack Smith.
“I will exercise independent judgement and will move the investigations forward expeditiously and thoroughly to whatever outcome the facts and the law dictate,” Smith said last month when he was appointed to the role.