Is the January 6 Committee Improperly Constituted?

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.

Continue reading “Is the January 6 Committee Improperly Constituted?”

Lawfare Podcast on January 6 Committee and Potential Subpoenas of Members

In today’s Lawfare podcast, Quinta Jurecic hosts Molly Reynolds and me to talk about the January 6 committee’s efforts to question House members about matters pertinent to its investigation.

The more I think about it, the more I lean toward the view that if the committee decides to subpoena members, it will pursue enforcement by means of a civil lawsuit, rather than a criminal contempt referral or some sort of internal disciplinary proceeding. This will allow the committee to keep attention focused on the fact that these members are refusing to provide information (as well as require them to explain their reasons for doing so in court), while minimizing their ability to claim political martyrdom. It also will allow the committee to avoid bringing the matter to the floor; a civil action can be authorized by the Bipartisan Legal Advisory Group without forcing rank and file members to vote on a politically charged matter. The committee can also point to some precedent for such an action; the Senate Ethics Committee brought suit against Senator Packwood to enforce its subpoena for his diary.

The downside is that the case will probably take too long for the committee to get any useful information this year. That’s why the committee has refrained from using this method of enforcement for other witnesses. But here the committee is more concerned with the potential political consequences and the internal precedent regarding subpoena of members; recognizing that they may soon be in the minority, Democrats do not want it to be too easy for House committees to subpoena members in the future.