Ignoring Subpoenas: An Affront to the Rule of Law

5/20/22

Imagine a world in which government bodies empowered to issue subpoenas have those subpoenas ignored. Oh wait… that’s where we are! By now, it’s well known that the January 6th Committee has subpoenaed five Republican Representatives — Kevin McCarthy (CA), Scott Perry (PA), Jim Jordan (OH), Andy Biggs (AZ), and Mo Brooks (AL) — seeking their responses to the committee’s questions concerning their knowledge and participation in events leading to and including the January 6th assault on the Capitol. By all appearances, all have indicated their intent to ignore these subpoenas.

These Congress members apparently believe they’re entitled to the discretion to comply with a subpoena or not as a matter of their own individual choice, and this idea seems to be embraced by the entire Republican leadership as well as a substantial portion of the Republican party membership. It’s hard to fathom how anyone with any appreciation for the rule of law could endorse these brazen and coordinated challenges to Congressional authority; and yet no agency of our government seems willing to tell them anything different.

If these subpoenaed Representatives believe the January 6th Committee to be operating illegitimately, the proper response would be to challenge the legitimacy of those subpoenas in court. Ignoring the subpoenas, however, is wholly inappropriate and does untold damage to our system of checks and balances. Those who received subpoenas from the January 6th committee are free to appear and claim whatever privilege they deem to be appropriate, but they shouldn’t be permitted to subvert the efforts of the committee to carry out its responsibilities.

From what I’ve been able to gather, the January 6th Committee could refer these recalcitrant members to the Justice Department for possible criminal prosecution; or, alternatively, with an assenting vote by the entire House, those Representatives could be cited for contempt of Congress, where they could, at least theoretically, be subject to fines or imprisonment — a serious consequence but one befitting the seriousness of their violation of their Congressional oath to support and defend the Constitution. Apparently, both potential Congressional reactions don’t seem to have recent precedents, but the lack of such precedents may largely be due to the paucity of such flagrant violations of rules or norms on the part of members of Congress. Thank goodness for that.

All that has changed with the current Congressional session. Despite evidence that each of these subpoenaed Representatives participated in conversations relating to the planning and execution of a scheme to avoid certification of legal election results, Congress’s posture thus far seems to be that it’s January 6th Committee report will suffice, with the question of criminality or punitive action left to others.

Some argue that a more aggressive reaction to these plotters would exacerbate the already too polarized state of our nation, expressing the concern that doing so would invite a future, Republican controlled Congress to instigate a raft of their own investigations and punishments for their political rivals. I say, whatever charges the Republicans might like to make, bring it on. Democrats shouldn’t allow this concern to deter them. I’d expect Democrats to participate in any Republican led hearings or investigations and respond to any questions — just as they have done in the past in connection with the Republican led investigation into the terrorist attack in Benghazi that took 4 American lives in 2012. Many Democrats viewed that investigation as a political witch hunt; but they still played by the rules, with Secretary Clinton testifying publicly for 8 hours. Double standard?

The audacity of the six Representatives who have placed themselves above the authority of a Congressional committee is jaw-dropping. These individuals are complicit in dismantling Congress’s ability to exercise its oversight responsibilities. Can they not recognize the danger of the precedent that they are setting? Apparently not, or else they just don’t care. Perpetuating the big lie and protecting themselves and others who’ve actively propagated that lie has taken precedence.

Congress has an obligation to respond to this challenge — now, before it’s too late. The five representatives have certainly shown their contempt for Congress, and failure to respond to this affront would surely invite a reprise. Congressional subpoena power is a critical weapon in Congress’s fact-finding arsenal, and we allow this authority to be compromised at our peril.