Congress should fire back on McCarthy’s obstruction tactics

The latest political storm blowing from Mar-a-Lago is the Aug. 31 apparent threat by House Minority Leader Kevin McCarthy (R-Calif.) to 35 telecommunications and social media companies. To head-off the companies’ compliance with evidence-preservation demands from the House committee investigating the Jan. 6 Capitol assault, McCarthy declared that if the companies comply, Republicans “will not forget” whenever they retake control of Congress, potentially costing these companies “their ability to operate in the United States.”

The same day, Rep. Marjorie Taylor Greene (R-Ga.) piled on, declaring: “These telecommunications companies, if they go along with this, they will be shut down, and that’s a promise.”

These apparent threats followed the committee’s requests that the companies retain phone records and other information related to the attack and that they identify sender, receiver, time and related data that might provide a basis for further investigation. Those records could be used as evidence but would not disclose the content of conversations.

McCarthy asserted vaguely that the Committee’s request violated federal privacy law. However, in 1979 the Supreme Court established in Smith v. Maryland, that Americans have no protected privacy in such records.

The Court has long recognized Congress’s authority to conduct investigations in order to execute its Constitutional powers of oversight and legislation. The Court described investigation as “an essential and appropriate auxiliary to the legislative function.” Without question, investigating an insurrection that disrupted the certification of a presidential election falls squarely within this ambit.

Beyond political bullying, McCarthy and Greene could be skating on very thin ice above illegality. There are criminal laws prohibiting interference in Congressional investigations, like 18 USC §1505(b):

“Whoever corruptly, … by any threatening … communication … endeavors to influence, obstruct, or impede … the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House — shall be fined under this title [or] imprisoned not more than 5 years.”

“Corruptly” has been described to include an action that is, at least in part, done with “an evil or wicked purpose,” for an “improper motive.”

McCarthy realizes his path to the Speakership runs through Mar-a-Lago; thus, he has walked back his initial statements in January that Trump bore responsibility for the riot. But McCarthy cannot retract his admissions that he spoke to Trump at least once that day, reportedly pleading with him to call off the rioters. Now it’s apparent McCarthy wants to avoid any testimony about such calls, presumably because the truth could embarrass or possibly even incriminate his patron.

In addition, McCarthy may be protecting members of his caucus. Facing the prospect of phone records surfacing, pro-Trump firebrand Rep. Jim Jordan (R-Ohio), recently moved from equivocating about whether he talked to Trump on Jan. 6, to admitting a call … to admitting maybe more than one call.

Congress has remedies for improper attempts to obstruct cooperation with a Congressional investigation. They can refer criminal investigation matters to DOJ. Additionally, Article I, Section 5 of the Constitution empowers Congress to judge its members’ qualifications and punish them for disorderly behavior.

As early as 1821, the Supreme Court recognized Congress’s inherent authority to punish for contempt, without resort to the executive or judicial branches. 

In 1982, at the direction of President Ronald Reagan, Environmental Protection Agency (EPA) Administrator Anne Gorsuch refused to turn over documents in a Congressional investigation. Congress answered with a contempt citation. The administration eventually complied, Congress withdrew the citation, and Gorsuch resigned several months later.

While such actions may seem unlikely at present, based on single apparent threats before subpoenas have issued, no one knows how far McCarthy or Greene may go as the investigation proceeds. Strategically, the House could lay a foundation now to support any future disciplinary action against McCarthy or Greene — or encourage them up to drop the obstructive tactics.

House counsel should immediately issue a letter setting forth the legal basis for the Committee’s evidence-preservation request, and requirements under federal law for the telecom companies’ compliance. The letter should demand that the representatives specify any federal laws they believe would support non-cooperation with Congress. They should be told that if they cannot cite a persuasive legal basis for non-cooperation, they should rescind the threats or risk further consequences.

While the Committee cannot control McCarthy and Greene’s fulminations, it can make a clear record to support a future disciplinary action or referrals to the House Ethics Committee or Justice Department.

Much is at stake here. If political leaders are permitted to make unsupported threatening statements about witnesses or holders of evidence, the rule of law is in jeopardy — both in Congress and in the streets that surround it.

To avoid having Jan. 6 transformed into a recurring “Ground Hog Day,” the House cannot turn the other cheek on apparent threats to the Select Committee’s investigation.

Frederick Baron formerly served as an associate deputy attorney general, special assistant to the attorney general and director of the Executive Office for National Security in the Department of Justice. He currently is senior counsel at Cooley LLP, an information technology, life sciences, emerging companies, venture capital firm.

Dennis Aftergut is a former federal prosecutor, who has successfully argued before the Supreme Court. He is currently of counsel at the Renne Public Law Group in San Francisco.