Letters from House Minority Leader Kevin McCarthy (R-Calif.) and Rep. Jim Jordan (R-Ohio) demanding documents from the House committee investigating the Jan. 6 attack on the Capitol is a surprising signal that some GOP members subpoenaed by the panel may actually be thinking about some level of cooperation with its investigation.
The letters largely berate the committee before asking it to turn over most of its information on the two lawmakers. Still, it cracks open the door for negotiations over whether they may actually appear — a strategy that could likewise be effective in draining committee time.
The duo are among five members subpoenaed by the panel earlier this month after being previously asked to voluntarily meet with the committee.
None did so.
But with staggered deadlines to comply with subpoenas by the end of the month, some seem to be rethinking that calculus in the face of possible prosecution and jail time.
“The strategy is obvious: cooperate, take the contempt, or file a lawsuit. There seems to be room for negotiation if the January 6th Committee will engage. But we really are in uncharted territory in many ways,” a Republican official with knowledge of the situation told The Hill.
All three might be equally unappealing.
Straight cooperation would give leverage to a committee the GOP has otherwise lambasted as purely political and improperly constructed.
It’s something the two alluded to in an op-ed in The Wall Street Journal on Thursday.
“For House Republican leaders to agree to participate in this political stunt would change the House forever. Every representative in the minority would be subject to compelled interrogations by the majority, under oath, without any foundation of fairness,” the two wrote.
But bucking them entirely and risking contempt — the panel and full House have already referred charges for four others who defied their subpoenas — carries up to two years of jail time and $200,000 in fines.
And a suit to challenge the committee’s authority to issue the subpoenas would be a lengthy and expensive proposition. There’s no guarantee for success, and it could solidify the rights of a panel to subpoena their lawmakers.
Jordan, one of the House’s most combative members, appears to walk the line between offering cooperation and risking contempt.
“I ask that you provide all documents, videos, or other material in the possession of the Select Committee that you potentially anticipate using, introducing, or relying on during questioning,” Jordan wrote to the committee on Wednesday, adding “so that I may adequately further respond to your subpoena.”
McCarthy’s letter, written by his attorney, makes similar requests, while also delving into issues around how the committee was composed.
“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,” Tim Mulvey, the Jan. 6 committee’s spokesman, said in a late Friday statement, adding that the two were “hiding behind debunked arguments and baseless requests for special treatment.”
The committee wants to speak with both McCarthy and Jordan about their communications with former President Trump on Jan. 6.
Jordan himself was scheduled for a Friday deposition, though those subpoenaed are often granted an extension as they seek an attorney or otherwise engage with the committee. It’s not clear whether his letter would be considered such a request.
The hint of cooperation has been used by several already subpoenaed by the committee, though such a move can effectively function as a “beat the clock” strategy that eats up time.
“I think beat the clock is the game,” said Jeff Robbins, an attorney now in private practice who has served as both a federal prosecutor and a Senate investigative counsel. “It’s a transparent effort by someone who does not have a valid basis to fail to comply with a subpoena to delay compliance.”
“The GOP expects to take control of the House in November, which will mean that this committee will be disbanded before you can say ‘insurrection,’ ” he added. “And therefore the subpoena will be withdrawn and deemed a nullity within a nanosecond of the new Congress being sworn in. That really, to me, seems to be the strategy of those being subpoenaed.”
Dan Scavino, Trump’s deputy chief of staff for communications, was among the first four people to be subpoenaed by the panel in August of last year, but after a lengthy back and forth between lawyers, he didn’t ultimately face a contempt referral to the Department of Justice until April.
Others have chosen to take a path of some cooperation.
Mark Meadows, Trump’s chief of staff, turned over thousands of his text messages to the committee alongside other documents but never came in for an interview.
That degree of cooperation, along with his status as a close adviser to the president, could be factors in why the Department of Justice has yet to take the House’s referral for criminal prosecution of Meadows.
Meadows is, however, in the midst of a suit with the committee over whether his executive privilege claims are a valid reason for withholding other documents as well as his testimony.
It’s unclear whether McCarthy or Jordan would be able to take a similar tack. Meadows had reams of documents the committee wanted early in its investigation and is able to legally shield some information about his conversations with the president due to his role — a status lawmakers do not have. A degree of cooperation may not be enough to keep the Justice Department at bay for either congressman.
Other witnesses have shown up for depositions only to largely plead the fifth and have successfully avoided contempt charges, though both have contended they did nothing wrong and may not wish to rely on a privilege that involves any reference to self-incrimination.
If the subpoenaed lawmakers later decide to file a suit, it would follow a string of challenges that have resulted in the judiciary largely upholding the committee’s authority to conduct its investigation. And things like the speech and debate clause don’t protect members for action taken off the floor.
“They have a poor prospect and likely would ultimately lose. The obvious has already been adjudicated in Congress’s favor, which is that of course Congress has the ability to fully investigate the circumstances,” Robbins said.
“Members of Congress seeking a judicial finding that the committee doesn’t have the right to subpoena them have a very, very steep uphill battle, and it’s not even clear to me what their arguments would be.”
The varying deadline for appearances from the quintet of lawmakers only stretch as far as May 31 without any extensions from the committee.
Others subpoenaed alongside Jordan, like Rep. Scott Perry (R-Pa.), called the investigation “a charade,” while Rep. Andy Biggs (R-Ariz.) said although he wasn’t sure how he would respond, “we don’t want to dignify what they are doing.”
Robbins said if they flout the committee’s authority, the panel should consider taking the dramatic step of seeking a contempt of congress referral against their colleagues, something he acknowledges would be “a very, very tight and difficult battle.”
“It’s a difficult bullet [to bite] for reasons of comity, difficult because you know that the threats are going to be that ‘Wait till we take control of Congress and we start subpoenaing Adam Schiff on some cockamamie theory or another,’ ” he said, referring to the chair of the House Intelligence Committee who also serves on the Jan. 6 panel.
“Ultimately it seems to me that that’s what the committee — if it wants any hope at all of getting partial compliance from some of these congressmen — will have to do, which is vote to hold them in contempt.”