There's every reason in the world to believe that there were members of Congress who conspired with the violent domestic terrorists who sacked the Capitol in the insurrection part of Trump's coup. At least 9 members of Congress-- Madison Cawthorn (R-NC), Lauren Boebert (Q-CO), Mo Brooks (R-AL), Paul Gosar (R-AZ), Marjorie Traitor Greene (Q-GA), Scott Perry (R-PA), Louie Gohmert (R-TX), Matt Gaetz (R-FL), Andy Biggs (R-AZ)-- stand out as probable seditionists whose activities around the violence should be investigated. Others, particularly Gym Jordan (R-OH) and Kevin McCarthy (R-CA), have helped Trump cover up the extent of his own involvement in the plot. Is Congress capable of policing its own criminal members?
This morning, The Hill ran an interesting essay on the subject by Irvin Nathan, a former general counsel of the House from 2007 to 2010, during which time he successfully litigated a civil suit against White House Counsel Harriet Miers and Bush chief of staff Josh Bolten, forcing them to comply with House Judiciary Committee subpoenas relating to Bush’s illegal firing of several of his own U.S. attorneys.
Nathan began by reminding his readers that the select committee investigating the coup has already been rebuffed when it invited Perry, Jordan and McCarthy to testify voluntarily. So what next? "The House," wrote Nathan, "clearly has the power to compel them to appear and testify about their knowledge of the events of that day and the days leading up to it. The usual means to enforce the subpoenas in court may not be available because of the refuseniks’ status as Congressmen. But several tools are available to the House to compel the testimony. The only real question is whether the House has the political will to do so." Spoiler: alas, it doesn't.
At the heart of the issue is the Constitutional provision known as the “Speech or Debate Clause.” This protection for the independence of individual members of Congress provides that “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other place.” In this controversy, the provision is both a sword and a shield.
On the positive side, this provision expressly authorizes the House to question members of the House. The provision makes clear that Members can be questioned in the House for their official conduct. And in order to question them, it is essential that the House-- and the committee-- have the authority to compel them to attend and answer its inquiries.
Almost 100 years ago in a case arising out of the Teapot Dome scandal, the Supreme Court reiterated the long-standing principle that the power to compel information from knowledgeable individuals is an inherent power for any body to legislate. The courts have never suggested that anyone, including members of Congress, is exempt from this authority. Indeed, they have repeatedly ruled that no one is immune and that everyone with pertinent knowledge is subject to this subpoena authority.
A moment’s reflection will reveal that the House and its committees must be able to compel members to appear before it. The Constitution authorizes each chamber to develop its own rules and to enforce compliance with those rules, with sanctions up to and including expulsion. Each chamber has an ethics committee to investigate whether members are complying with those rules and ethical standards. To make those determinations fairly and accurately, those committees must be able to compel attendance and testimony from the subjects of those inquiries as well as other Members knowledgeable about the relevant facts. The inherent power that the courts have recognized must extend to subpoenas to members. The subpoena by the Senate Ethics Committee for Senator Robert Packwood’s diaries in the mid-1990s and the House Ethics subpoena for Charlie Rangel's financials are precedents.
But when it comes to enforcement of the subpoenas, the House must wrestle with the negative side of the Speech or Debate Clause, which precludes the use of the normal ways in which refusals to comply with Congressional subpoenas are handled. Since the mid-19th century, when Congress enacted a statute to provide for criminal penalties for contempt of Congress, the principal remedy for refusal to comply with a Congressional subpoena has been a referral to the Department of Justice for criminal prosecution. That is the route the House took in the case of Trump adviser Steve Bannon, and that is under contemplation in the case of former Trump chief of staff, Mark Meadows.
Beginning in 2008 with the case of former Bush White House counsel Harriet Miers, another approach-- which I initiated as General Counsel of the House under Speaker Nancy Pelosi-- is to bring a civil suit to compel compliance with the House subpoena. Such an approach contemplates that if a neutral court finds the subpoena lawful and the refusal to comply unwarranted, a court will enter an order compelling compliance. Defiance of such a court order would be punishable by a contempt of court, which could lead to imprisonment, unless or until there was compliance with the subpoena.
Because of the Speech or Debate Clause, neither criminal prosecution nor civil court action would likely be available against a Member of Congress for refusal to obey a Congressional subpoena because they would then be “questioned” in another forum for their actions in the House.
“Speech or Debate” has uniformly been interpreted to cover any legislative activities of Members. There can be no question that the Committee is seeking to inquire about these Members’ legislative activities when the chairman’s letters make clear that it intends to inquire about the efforts to clear the Capitol so that the certification process could proceed and the legislative strategy behind the effort to preclude the certification. A refusal to comply on the asserted ground that the committee is not properly constituted and lacks power to compel testimony-- however unsubstantiated-- will most probably be viewed by the courts as covered by the Speech or Debate Clause.
But this does not mean that the committee or the House is powerless to enforce the subpoena to Members.
In the early 19th century, the Supreme Court ruled that each House of Congress must have the inherent authority to punish, including by incarceration, anyone standing in contempt of Congress. That principle has never been overruled or even called into question by the court and was reiterated in the Teapot Dome case. It is thus well established that for anyone in contempt of Congress, the House, after a hearing, may cause the sergeant at arms to imprison that person until either he purges himself of the contempt or the term of the Congress expires.
Presumably, if the House can imprison someone in contempt, it can impose sanctions short of incarceration when the contemptuous individual is a Member-- including loss of committee assignments, voting privileges or compensation.
In addition, without even resorting to inherent contempt, the House could exercise its powers under the disciplinary clause of the Constitution. That provision states that each House “may punish its Members for disorderly behavior, and with the concurrence of two thirds, expel a Member.” Presumably, for sanctions less than expulsion a majority would suffice. Refusing to honor a lawful subpoena to testify about relevant information may well be viewed as “disorderly behavior.”
One benefit of the House’s using its own Constitutionally authorized powers is that it avoids court delays and allows the House and the committee to act within its time constraints. It also avoids distracting court litigation over the applicability of the Speech or Debate Clause.
In short, the House select committee has the unquestioned power to subpoena Members to provide information relevant to its legislative work. Assuming the committee believes these members have such information germane to the events of Jan. 6, the real question is whether the House has the political will to impose available punitive sanctions for the willful refusal to comply with lawful subpoenas.
Because of the dysfunctional and toxic hyper-partisanship that has infected American politics in the last decade-- how dare they elect a Negro to the White House!-- Republicans would be lining up for punitive sanctions, a guarantee of notoriety and a flow of cash inside of MAGA-world.