Julio Cortez/AP

The Case for Subpoenaing Members of Congress to Testify on the January 6 Insurrection

Democrats have strong constitutional arguments on their side.

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.”

[Kimberly Wehle: The two memos with enormous constitutional consequences]

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.”

[Read: Republicans refuse to reckon with January 6]

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.

This article was originally published in The Atlantic. Sign up for their newsletter

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.