a suit stuck in a red paperclip" width="960" height="540" />Democrats have strong constitutional arguments on their side.
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By any logical measure, the question of whether members of the House GOP knew about or were involved in the events of January 6 falls squarely within the legitimate scope of Nancy Pelosi’s investigatory select committee. And Pelosi seems eager to follow through. Last week, the House speaker signaled that the committee would soon be focusing on sitting members of Congress who, in her words, “participated in the ‘big lie.’” The next step may well be a first for the country: subpoenas to current members of Congress, issued by a committee of Congress.
The select committee’s chair, Democratic Representative Bennie G. Thompson of Mississippi, has said that he has “no reluctance to subpoena” members of Congress “whose testimony is germane to the mission of the select committee” if they refuse to cooperate voluntarily. And Thompson announced this week that investigators would seek phone records from telecommunications companies relating to the attack, including those of members of Congress.
Will these subpoenas withstand legal scrutiny? There is no established historical or legal precedent regarding congressional power to enforce subpoenas against members of Congress. But if the bipartisan committee has to defend the subpoenas in federal court, it could make a strong argument that the Constitution allows a court to order compliance.
Although not expressly stated in the Constitution, Congress’s power to gather facts to assist in lawmaking efforts is well established in Supreme Court case law. The theory is that a “legislative body cannot legislate wisely or effectively in the absence of information,” and “some means of compulsion are essential to obtain what is needed.” Because legislating is Congress’s constitutional duty, the Court in 2020 issued a ruling in its favor on another unprecedented question: serving a congressional subpoena for a sitting president’s financial information held by his accounting and tax firms. In Trump v. Mazars, Chief Justice John Roberts wrote for a 7–2 Court—with only Justices Clarence Thomas and Samuel Alito dissenting—that although a presidential subpoena raises distinct separation-of-powers concerns, the House committees’ subpoenas were valid: “Without information, Congress would be shooting in the dark.”
The House and Senate and their respective committees each have a variety of internal rules about who gets to issue subpoenas for documents and testimony. For the select committee on the January 6 attack, Thompson has that power. The rules require “consultation with the ranking minority member” of the committee to “order the taking of depositions, including pursuant to subpoena.” But Pelosi rejected the nomination by Minority Leader Kevin McCarthy of Representative Jim Banks, and no one else has been named to fill the slot. Thompson made clear at the opening hearing that Representative Liz Cheney “is not the ranking member,” and Adam Kinzinger is the only other Republican on the committee; McCarthy pulled all his other picks after Pelosi denied Banks and Representative Jim Jordan a seat. (Republicans are likely to balk at any subpoena as long as the ranking-member position remains vacant.)
If committee subpoenas are issued and ignored, Thompson will have three potential means of enforcement. First, Congress can vote to ask the Justice Department to criminally prosecute someone for being in contempt of Congress. Second, it can rely on its inherent authority to have the sergeant-at-arms for the House or Senate detain, bring to the floor, and ultimately imprison the violator. Or third, it can file a civil action in federal court, secure an order directing compliance, and ask the court to issue a contempt-of-court citation if the order is violated. Presumably, reluctant GOP members in receipt of subpoenas from the select committee would welcome a court battle, as litigation would delay the committee’s work for months and any ruling would likely be appealed to the Supreme Court.
The legal argument against a subpoena, such as it were, rests on the Constitution’s speech-or-debate clause, which states that “for any Speech or Debate in either House,” members of Congress “shall not be questioned in any other Place” (emphasis added). Arguably, the plain text suggests that inquiries in Congress itself—as distinct from the criminal-justice system, which is controlled by the executive branch, or a civil lawsuit brought before the judicial branch—are fair game. But no court has faced this precise issue to date.
The clause dates back to 1689’s English Bill of Rights, which was designed to prevent the monarchy from using criminal and civil laws to bully legislators critical of the Crown. According to the Supreme Court, it was “not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.”
The clause doesn’t protect any and all actions by members or their aides from civil or criminal process—only those actions that fall “in the sphere of legitimate legislative activity,” which has been confined under Supreme Court case law to actions that are “an integral part of the deliberative and communicative processes by which Members participate … with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places with the jurisdiction of either House.” Thus, the Court has stressed that “a Member of Congress may be prosecuted under a criminal statute provided that the Government’s case does not rely on legislative acts or the motivation for legislative acts.”
In Gravel v. United States, the Court in 1972 held that the speech-or-debate clause did not extend immunity to a senator’s aide subpoenaed to testify before a grand jury about the alleged arrangement for private publication of the Pentagon Papers, because the testimony had nothing to do with the legislative sphere. The Court explained that although it has long read the clause “broadly to effectuate its purposes,” the fact that members “generally perform certain acts in their official capacity as Senators does not necessarily make all such acts legislative in nature.” It continued: “Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies—they may cajole, and exhort … but such conduct, though generally done, is not protected legislative activity.”
The scope of legislative activity will surely be relevant to any examination of certain Republican members’ conduct in the lead-up to January 6, 2021. In particular, on the eve of the Senate vote on Trump’s second impeachment, Representative Jaime Herrera Beutler revealed that Minority Leader McCarthy recounted to her a heated phone call he’d had with Trump during the January 6 chaos; what was said bears on Trump’s knowledge of, and potential complicity in, the violence—another clearly appropriate area of the committee’s investigation. Jim Jordan also spoke with Trump that day, and both he and Representative Mo Brooks of Alabama participated in a December meeting at the White House with Trump and other House Republicans, which Brooks described as an “effort to object to states that have such flawed election systems as to render them untrustworthy” that was “full speed ahead.”
Given the lack of evidence of election fraud—and the constitutional sanctity of the Electoral College certification by Congress—these do not obviously appear to be the types of actions that should be protected by legislative privilege. (Nor, for that matter, would communications with Trump find ready cover under executive privilege, which did not insulate Richard Nixon from having to turn over the Watergate tapes that ended his presidency.) As the Supreme Court noted in Gravel regarding testimony about an alleged conspiracy to violate constitutional rights: “Unlawful conduct … the Speech or Debate Clause simply did not immunize.”
Once again, Trump may have served up a constitutional conundrum that America has never seen before: members of Congress potentially flouting their colleagues’ quest for information about a lawless insurrection designed to violently wrest power from a legitimately elected president. And once again, the courts must step up to protect and preserve elected leaders’ constitutional accountability to the public.
