Elliot S. Berke, attorney to House Minority Leader Kevin McCarthy (R-Calif.), on May 27 responded to a May 12 subpoena by the controversial Jan. 6 Committee, rejecting the subpoena as being neither “valid” nor “lawful.”
McCarthy, along with Reps. Jim Jordan (R-Ohio), Andy Biggs (R-Ariz.), Scott Perry (R-Pa.), and Mo Brooks (R-Ala.)—all of whom have been outspoken critics of the panel—received the subpoenas in an unprecedented break with House tradition, which has never seen a sitting member of Congress subpoenaed.
Almost every lawmaker on the list, including McCarthy and Jordan, has in the past received and refused requests from the Jan. 6 panel to voluntarily cooperate.
In a May 25 letter, Jordan publicly rejected the subpoena as a “political vendetta” that is in contravention of standing House rules.
Now, McCarthy has followed suit in his own lengthy response to the Jan. 6 panel’s subpoena (pdf).
While Berke acknowledged that “Congress has a constitutional obligation to conduct rigorous oversight as part of this country’s founding principles of checks and balances and separation of powers,” he also noted that “Congress’s subpoena authority is not without limitation.”
“All valid and lawfully issued subpoenas must be respected and honored,” Berke continued. “Unfortunately, the words and actions of the Select Committee and its members have made it clear that it is not exercising a valid or lawful use of Congress’ subpoena power.
“In fact,” Berke continued, “the Select Committee is not even operating in compliance with the rules its own members voted to put in place.”
Specifically, he noted that the resolution authorizing the creation of the panel allowed the minority party to have five seats, selected by the minority leader.
“Speaker Pelosi violated 232 years of continuous precedent by refusing to allow the minority party to select its representation on the committee,” Berke said.
“It has since engaged in a series of actions that further distance it from its authorizing resolution in violation of the House Rules and precedents. At no time in the history of the House has the majority denied the minority the right to select its representation nor constituted a Congressional committee in violation of the Rules of the House. And at no time in the history of the House has the majority failed to honor the House’s deposition and subpoena authority.
“The principle that a Congressional committee must adhere to its applicable rules in pursuit of the enforcement of its subpoenas has resulted in convictions for contempt of Congress being overturned.
“In Yellin v. United States, the Supreme Court reversed a conviction for contempt of Congress when it determined that the Congressional committee failed to adhere to its own rules regarding procuring witness testimony: ‘The committee prepared the groundwork for prosecution in Yellin’s case meticulously. It is not too exacting to require that the Committee be equally meticulous in obeying its own rules.’
“How then does the Select Committee justify its investigation considering Speaker Pelosi’s failure to compose the Select Committee within the confines of H.Res. 503?” Berke asked. “Why has the Select Committee engaged in the deprivation of minority rights to such an unprecedented nature and failed to follow the House Deposition Regulations?”
Berke then cited comments from Reps. Liz Cheney (R-Wyo.) and Adam Kinzinger (R-Ill.), the only Republicans on the commission—both of whom were appointed by Speaker of the House Nancy Pelosi (D-Calif.)—which in effect said that the committee existed to tell the story of what happened on January 6, 2021.
“The Supreme Court has made clear that exposure for purposes of telling a story is not a valid legislative purpose, and not a valid use of the subpoena authority granted to Congress under the Constitution,” Berke noted. “If those objectives qualified as valid legislative purpose, then Congress’s subpoena power would be limitless.”
“In this instance, it is clear from your correspondence that the Select Committee has exceeded its constitutional constraints to exercise its power of inquiry as decreed by our Founding Fathers as further defined by the Supreme Court, and as assigned to you by H.Res. 503,” the letter continued.
“In light of the above-described deficiencies, it is unclear how the Select Committee believes it is operating within the bounds of law or even within the confines of the authorizing resolution,” Berke added, attaching a list of questions probing the commission’s legal authority to issue the subpoena.
“I expressly reserve Leader McCarthy’s right to assert any other applicable privilege or objection to the Select Committee’s subpoena,” Berke concluded. “I look forward to discussing these questions and procedural deficiencies … at the earliest convenience.”
Since its creation, the Jan. 6 panel has been condemned by various Republicans as a “partisan witch hunt” for exclusively targeting Republicans and other allies of former President Donald Trump—including former White House adviser Steve Bannon, who wasn’t even in the White House on Jan. 6, 2021.
Committee Chairman Bennie Thompson (D-Miss.) has long said he would not shy away from using the subpoena power against sitting members of Congress, an unprecedented move.
However, as McCarthy’s letter indicates, the attempt is sure to end up in the courts, which will have the final say on the validity of the subpoenas.