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.

A weaker version of the claim might be that Pelosi retained some discretion with respect to appointments, but that this discretion must be exercised in accordance with House tradition and precedents. At least in the modern era it appears that minority nominations for committees, including select committees, have been accepted as a matter of course. See, e.g., CRS Rep., The Committee System in the U.S. Congress 2 (Oct. 14, 2009) (“Each party is primarily responsible for choosing its committee leaders and assigning its Members to committees. . .”). On the other hand, speakers in the past have asserted their power to reject minority nominations, and there appears to be no precedent in which that power was relinquished. See 8 Cannon’s Precedents § 2172 (citing “instances in which the majority declined to recognize minority recommendations for committee assignments”).

An even older practice would exclude from committees those who were opposed to its charge, whether it be legislative or investigative in nature. Thus, Jefferson says that “[i]t is therefore a constant rule ‘that no man is to be employed in any matter who has declared himself against it.’” House Rules and Manual § 402. While this has long since ceased to be the rule in the House, there may still be rare occasions on which it is still proper to apply the principle. Cf. IV Hind’s Precedents § 4478 (Senator Hoar remarks that “[i]t is of course proper that in all legislative bodies great public questions should be committed to instrumentalities composed of persons in accord with the prevalent policy, and I do not expect anything else.”). At the very least, it would seem a member could be denied a seat on a committee if he had a personal conflict of interest that might be affected by his service. See House Ethics Manual 237 (2008) (noting that a member’s “advocating or participating in an action by a House committee” which “may affect his or her personal financial interests requires added circumspection”).

Pelosi’s admittedly “unprecedented” action of excluding Banks and Jordan from the select committee took place in the highly unusual context of an investigation of events directly implicating members of Congress as participants and witnesses. Her action appears to have been premised on the hostility that these members had expressed toward the investigation, but she also might have considered the possibility that these members would have had a conflict of interest because they were potential witnesses with unique information that the committee wished to obtain. Thus, while the exclusion of Banks and Jordan may have been unprecedented, there are unprecedented circumstances which reasonably explain the speaker’s action.

If minority members believed otherwise, they were free to challenge Pelosi’s action within the House itself, where members could argue that she abused her discretion by refusing to appoint members recommended by the minority leader. For example, during the debates over contempt resolutions for Steve Bannon and Mark Meadows, members could have sought a ruling or House vote on whether the select committee was without authority to issue subpoenas or hold anyone in contempt. However, despite repeated complaints about the lack of minority representation on the committee, no one raised a point of order or made a formal objection along these lines. During the Bannon debate, no one even explicitly argued that the committee’s composition violated the House resolution, though Banks did assert the committee’s investigation was not legitimate because “for the first time in the history of Congress, Speaker Pelosi vetoed Jim Jordan and me from serving on the Select Committee.” Cong. Rec. H5759 (daily ed. Oct. 21, 2021). In the later Meadows debate, though, both Banks and another member clearly suggested that the committee’s acts were ultra vires because of the failure to appoint its members in accordance with the resolution. See Cong. Rec. H7786-87 (daily ed. Dec. 14, 2021) (Rep. Banks); id. at H7793 (Rep. Biggs) (select committee is “illegitimate” because “[i]t has violated its own rules of creation”). By adopting both the Bannon and Meadows contempt resolutions, the House implicitly rejected these arguments and affirmed that the committee was properly constituted.

In short, the argument that the speaker lacked any discretion with respect to the appointment of minority members lacks textual support and the argument that she abused her discretion in this regard is debatable at best. To the extent that a court believes the resolution, by itself or in combination with House precedent, is ambiguous on these issues, it would have to defer to the House’s own judgment on the matter. See Barker v. Conroy, 921 F.3d 1118, 1130 (D.C. Cir. 2019) (“We deal here with Congress’s interpretation of its rules—something no court can lightly disregard.”); see also United States v. Rostenkowski, 59 F.3d 1291, 1305 (D.C. 1995) (“judicial interpretation of an ambiguous House Rule runs the risk of the court intruding into the sphere of influence reserved to the legislative branch under the Constitution.”).

That brings us to the first point, which is Pelosi’s failure to appoint the full 13 members to the January 6 select committee. Here the text is more plausibly read as imposing a duty on the speaker, but (as the House brief points out) the term “shall” is sometimes read in a permissive (“may”) rather than mandatory sense. While the House undoubtedly expected that the speaker would appoint 13 members under ordinary circumstances, it did not necessarily intend to require her to do so under all circumstances. In particular, it seems unlikely it intended to grant the minority an effective veto over the committee’s formation, which is what would happen if the minority’s refusal to participate made it impossible for the committee to act. Indeed, as the House again points out, the House select committee to investigate the response to Hurricane Katrina in 2005-06 operated without its full complement of members after the then-minority leader (Pelosi) refused to nominate minority members.

Assuming that Pelosi had the authority to refuse to appoint Banks and Jordan, she can hardly be blamed for the refusal of other Republican members to accept appointment to the select committee. Of course, she could have appointed Democrats to fill out the remaining seats, but it is doubtful that any of the witnesses will argue that she should have done that, nor could they claim prejudice from her failure to do so.

In summary, the objection to the composition of the January 6 committee hinges on the refusal to appoint Banks and Jordan and, as discussed, it is highly unlikely any court can or should second guess the speaker’s decision in that regard. Thus, while this objection may be the last refuge of witnesses seeking to avoid complying with the committee’s investigative demands, they are unlikely to find protection there for long.

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