Before taking its decision, the select committee gamed out scenarios: what happens if Republicans defy the subpoenas?
The House select committee investigating the Capitol attack made a political and legal gambit when it issued unprecedented subpoenas that compelled five Republican members of Congress to reveal inside information about Donald Trump’s effort to overturn the 2020 election.
The move sets into motion an extraordinary high-stakes showdown of response and counter-response for both the subpoenaed House Republicans – the House minority leader, Kevin McCarthy, Jim Jordan, Scott Perry, Andy Biggs and Mo Brooks – and the panel itself.
Congressman Bennie Thompson, the Democrat chair of the select committee, authorized the subpoenas on Wednesday after the panel convened for final talks about whether to proceed with subpoenas, with House investigators needing to wrap up work before June public hearings.
“We inquired to most of them via letter to come forward, and when they told us they would not come, we issued the subpoena,” Thompson said of McCarthy and his colleagues. “It’s a process. And the process was clearly one that required debate and discussion.”
The decision came after a recognition that their investigation into January 6 would not have been complete if they did not at least attempt to force the cooperation of some of the House Republicans most deeply involved in Trump’s unlawful schemes to return himself to office.
But the subpoenas are about deploying a political and legal power play in the crucial final moments of the investigation as much as they are about an effort to gain new information for the inquiry into efforts to stop Joe Biden’s certification in time for public hearings.
That is evident in the conundrum faced by the subpoenaed House Republicans – with the knowledge that how they respond to the orders seeking testimony about their contacts with Trump will determine the future of the investigation and of congressional subpoena power.
In the days before the select committee assented to Thompson signing off on the subpoenas, the members on the panel gamed out the scenarios and reached the conclusion that subpoenas were actually a win-win situation, according to sources familiar with the discussions.
If the subpoenaed House Republicans decided to comply and provide cooperation to the select committee as the subpoenas are designed to do, then the panel would obviously benefit from their testimony, the sources recounted of the panel’s discussion.
If the subpoenaed House Republicans promised retaliatory subpoenas against Democrats should they take the House majority next year then they were going to do that anyway, the select committee reasoned, and they should issue the subpoenas.
If the subpoenaed House Republicans simply ignored the orders, then they would only be undercutting their ability to subpoena Democrats in partisan investigations should the GOP take the House majority next year, since they would have set a precedent for non-compliance.
The extent of cooperation by the five Republican members of Congress will also set an additional precedent: if McCarthy and his colleagues appear for a deposition but stonewall the inquiry, then Democrats would surely reciprocate in kind when they get subpoenaed.
The select committee left their final meeting before Thompson signed off on the subpoenas hopeful of cooperation, but not really expecting anything, the sources said. If the House Republicans agreed to testify, it would be a welcome surprise.
But that final point was key, the sources said, and the panel realised the subpoenas in that sense were almost self-enforcing.
The issue at play is that House Republicans have been fantasising about subpoenaing Democrats in partisan investigations should they take the House majority. But those subpoenas would have power only if Republicans did not first undercut congressional subpoena power by defying them.
The “precedent” question is often derided by Democrats as foolish since they believe Republicans would happily defy their subpoenas, only to then force Democrats to comply regardless of how Republicans previously behaved, but it got some consideration on Thursday.
At least one of the subpoenaed House Republicans was seriously consulting about the precedent issue with his staff, according to staffers in that member’s office. And after the subpoenas were released, none of the five Republicans notably said they would defy them.
The immediate and reflexive reaction on Capitol Hill to the subpoenas centred on how the select committee intended to enforce the subpoenas, but the panel has no real interest in pursuing any legal enforcement, the sources said.
If the subpoenaed House Republicans sued to block the subpoenas in court, the select committee in that instance would probably have the House counsel, Doug Letter, contest the injunctions on behalf of the panel though only as a formality, the sources said.
But if the subpoenaed House Republicans ignored the orders, the select committee would probably rely on the “self-enforcing” mechanism since any effort to have a court uphold the subpoena could take months and would outlast the panel’s existence, the sources said.
The panel also told itself it could always decide whether to punish for non-compliance and refer the five Republican members of Congress for criminal contempt of Congress, though it was not clear whether the justice department would take up such a referral.
Congressman Jamie Raskin, a Democrat member of the select committee, told reporters that he had little patience for Republicans’ complaints about the unprecedented nature of the subpoenas – and the binds faced by the five House Republicans.
“If we have continued violence waged against the Congress, the vice-president, the peaceful transfer of power, and members of Congress have information, they should come and testify voluntarily,” Raskin said. “If they don’t, all of us should come to expect they could be subpoenaed.”