(Bloomberg) — House Republican Leader Kevin McCarthy is resisting compliance with a subpoena to testify before the congressional panel investigating the Jan. 6, 2021 insurrection at the Capitol — questioning its legal authority to even issue subpoenas.
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A letter detailing McCarthy’s objections Friday accuses Democratic Speaker Nancy Pelosi of violating precedent by refusing to allow the minority party to select its own representation on the committee. It also alleges the panel has engaged in other violations of House rules and precedents.
“The Select Committee is clearly not acting within the confines of any legislative purpose,” lawyer Elliot Berke wrote on behalf of McCarthy. “Its only objective appears to be to attempt to score political points or damage its political opponents – acting like the Democratic Congressional Campaign Committee one day and the Department of Justice the next.”
Addressed to committee Chair Bennie Thompson, the letter, doesn’t explicitly state that McCarthy won’t comply. But it comes as he, Jordan, and the other Republicans who are allies of former President Donald Trump — Scott Perry of Pennsylvania, Mo Brooks of Alabama and Andy Biggs of Arizona — this week began to pass the dates when they were subpoenaed to testify. None have done so.
There was no immediate response from Tim Mulvey, a spokesman for Mississippi Democrat Thompson and the committee, or from Pelosi’s office.
A main legal challenge in the letter from Berke is that the resolution creating the committee — H.Res. 503 — states the “Speaker shall appoint 13 members to the Select Committee, 5 of whom shall be appointed after consultation with the minority leader.”
But the panel has just nine members, only two Republicans — and both were selected by Pelosi after a dispute in which she rejected some of McCarthy’s appointees.
GOP Representative Liz Cheney of Wyoming — a Trump adversary — has been serving as the vice chair of the committee. The other Republican is Representative Adam Kinzinger of Illinois.
In addition to alleging that Pelosi didn’t properly constitute the committee, the letter states “subsequent decisions to deny the minority even the patina of representation of a Ranking Minority Member makes compliance with the Select Committee’s subpoena issuing authority and subsequent deposition authority of the House impossible.”
The attorneys also demand several responses from the committee, including a list of subject and topics to be discussed with the Leader, and the constitutional and legal rationale justifying the request — and who was the Ranking Minority Member consulted in advance of issuing subpoenas “as required by H.Res. 503.”
McCarthy and Jordan wrote in a Wall Street Journal guest editorial Thursday night that a harmful precedent would be set if he and four other Republicans complied with their subpoenas to testify.
“For House Republican leaders to agree to participate in this political stunt would change the House forever,” the two wrote, adding their subpoenas are “a dangerous abuse of power, serves no legitimate legislative purpose, and eviscerates constitutional norms.”
Whether this sets up a legal showdown is uncertain. The committee has pressed contempt of Congress action against four other non-lawmakers who have snubbed its subpoenas, including onetime Trump adviser Steve Bannon and Trump’s last White House chief of staff, Mark Meadows.
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