Republicans and Democrats agree that the attack on the U.S. Capitol on January 6, 2021, as the House and Senate tabulated the 2020 Electoral College votes, was horrific. Since then, however, they haven’t agreed on much, and the activities of the House Select Committee to Investigate the January 6th Attack on the United States Capitol have been mired in charges of partisanship. As a result, it is not a surprise that Republican Members of Congress who have received requests for information from the Select Committee have declined to participate. Thus, some have asked whether the Select Committee could subpoena sitting Members for information.
In one interview, the Chairman of the Select Committee, Representative Bennie Thompson (D-Mississippi), said, “We’re looking at it. If the authorities are there, there’ll be no reluctance on our part.” Committee member Representative Jamie Raskin (D-Maryland), a constitutional scholar, has emphatically come down on the side of being able to subpoena colleagues. “Absolutely, my position is that we clearly have the authority to do it,” he told CNN in January.
The Select Committee might have the authority to subpoena a sitting Member of Congress. Nonetheless, it should refrain from doing so. Subpoenaing Members will probably not help the Select Committee itself and will much more likely harm the House instead.
The January 6th Committee was created to investigate the mob that broke into the Capitol as the Congress met to count the Electoral College votes following the 2020 election. Many Republicans say the Committee’s work has been a partisan exercise and that it is abusing its power. Speaker Nancy Pelosi (D-California) went so far as to violate the House’s long-standing practice by denying Republican Leader Kevin McCarthy (R-California) the exclusive right to name his party’s Members of the Committee. Thus, the Republican Members from whom the Select Committee wants information will probably not cooperate and instead will face whatever attempts the Democrats undertake to enforce the subpoenas.
In recent decades, the House has sought enforcement of subpoenas by referring the matter to the Justice Department or by filing lawsuits. The prospect of executive or judicial enforcement of the subpoena raises important constitutional issues that would spawn little else but more lawsuits. The Executive Branch enforcing a Congressional subpoena against a Member of Congress would seem to be a serious breach of the separation of powers. Article I, Section 5 of the Constitution allows Congress to “determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” While the Executive Branch may prosecute Members of the House for criminal actions, it would be unprecedented to use the Executive Branch to enforce what, in this case, is an internal House matter. Practically speaking, such suits would probably not be resolved before this Congress ends, so attempts to enforce the subpoenas this way would likely not help the Committee’s work. It would also be seen as partisan actions to try to influence November’s elections.
Presumably executive or judicial enforcement of subpoenas for Members of Congress won’t be effective so the House majority does have another option if it chooses to go down this path. Since Article I, section 5, of the U.S. Constitution provides the House significant power to discipline its own Members, the House could vote to punish a Member for not cooperating with a subpoena. With the Committee’s work dividing the parties, the vote to discipline a Member for not responding to the subpoena would be destined to fall along partisan lines as well. Such a vote would have two results: the Majority would talk up their efforts to discipline a recalcitrant Member whom they would say clearly supports the riot while the Minority would crow about being mistreated by the majority. Such a feel-good partisan affair would not help the Committee’s work, though, and partisan rancor would significantly increase.
If the January 6th Committee subpoenas sitting Members now, other committees will take notice. Committee majorities looking to score their own political points and take their fights to the echo chambers on social media might issue more and more subpoenas to minority Members, who would snub them and invite partisan disciplinary action. Additionally, Republicans have raised their own questions about the events of January 6th, particularly as it relates to Congress’ preparedness prior to the attack. Would they want to haul Democrats before committees for answers should they retake the House Majority next year? Perhaps the current majority Democrats do not want to find out.
Turning disciplinary votes into partisan affairs is a dangerous practice for the House. The House Ethics Committee has a reputation for bipartisan work and votes on disciplinary resolutions typically pass with large bipartisan majorities. The House’s authority to discipline its Members is powerful, and Members need faith in its impartial administration, just as private citizens need to know the country’s laws are administered equitably. Dragging the House’s disciplinary power into partisan politics would gravely undermine the faith in the process and alienate the two parties even more. Little good can come of it.
However appealing it might be to subpoena a colleague, doing so on a partisan basis will tarnish the House’s ethics enforcement and increase already volatile tensions in the House—all without yielding information that will help the cause of the investigation. One of the legacies of the January 6th attack cannot be that the House inflicts wounds upon itself that the rioters never could.