Now that the Supreme Court has poured cold water on the executive privilege arguments being made by certain witnesses who have declined to cooperate with the January 6 select committee, a different objection by many of these witnesses takes on added importance. According to the lawyers for Mark Meadows, Jeffrey Clark, and others, the committee lacks the power to issue subpoenas or take other actions because it was constituted in violation of Section 2(a) of its authorizing resolution, H. Res. 503, which provides: “Appointment of Members—The Speaker shall appoint 13 Members to the Select Committee, 5 of whom shall be appointed after consultation with the minority leader.”
Acting pursuant to the resolution, Speaker Pelosi appointed eight members to fill the “majority slots” on the committee, seven of whom were Democrats and one (Liz Cheney) a Republican. She consulted with Majority Leader McCarthy regarding the remaining “minority slots,” but she rejected two of McCarthy’s five recommendations, declaring that Jim Banks and Jim Jordan had made statements regarding the proposed investigation that she claimed “make it impossible for them to exercise judgment.” Pelosi was willing to appoint the other recommended members, but they declined. Pelosi then appointed Adam Kinzinger (the only Republican other than Cheney who was willing to participate under these circumstances) to one of the minority slots, leaving the other four vacant.
It is contended that these actions violated Section 2(a) of the authorizing resolution in two respects. First, Pelosi appointed only nine members of the select committee, rather than the 13 specified by the resolution. Second, although she consulted with McCarthy, she did not appoint any of the five members he recommended.
Let’s start with the second point. A strong version of this claim would be that the authorizing resolution required Pelosi to appoint whatever members McCarthy recommended and left her with no discretion in the matter. This interpretation is hard to square with the language of the resolution, which requires merely “consultation” with the minority leader. If the House had wanted to constrain Pelosi’s discretion in this manner, it could have easily said so. Indeed, as the House points out in a recently filed brief, prior select committee resolutions have used stronger language (i.e., requiring that minority slots be filled “on the recommendation of the Minority Leader”), which could more plausibly be interpreted to require that the speaker appoint only members recommended by the minority. Here there is no indication that the House intended to make Pelosi’s power to appoint a mere ministerial act.