Jan. 6 committee subpoenas for sitting lawmakers could enter 'dangerous Constitutional territory'

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Predicting the future is best if you know something about the past.

Unfortunately, the past doesn’t tell us much about how the House committee investigating the January riot at the Capitol can get the information it wants from Reps. Scott Perry, R-Penn., and Jim Jordan, R-Ohio.

Perry claimed he wouldn’t cooperate with the panel. Perry argues the committee itself "is illegitimate" – even though the full House voted to create the entity. On Twitter, Perry then suggested Democrats wanted information from him to distract from issues at the border, inflation and Afghanistan.

FILE - Rep. Scott Perry, R-Pa., takes a question from a reporter at a news conference held by the House Freedom Caucus on Capitol Hill in Washington, on Aug. 23, 2021.  (AP Photo/Amanda Andrade-Rhoades, File) (AP Photo/Amanda Andrade-Rhoades, File)

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Jordan wasn’t as recalcitrant as Perry.

During an appearance on Fox, Jordan said he had "real concerns" with the committee, arguing it altered documents. Jordan said he would "review" the request from the committee for his communications.

In October, Jordan told the House Rules Committee that he "had nothing to hide" regarding any investigation into the melee.

The 1/6 committee is targeting Perry and Jordan for their work with former President Trump. The committee has questions about alleged efforts to coordinate a delay in the certification of the Electoral College on January 6. The committee wants to know what Perry and Jordan may have known ahead of the riot. The committee is also interested in communications between Jordan and Mr. Trump on the day of the riot.

Here’s the problem for the committee:

The panel – and the full House – has demonstrated a willingness to pursue those who thumb their noses at the committee. Former White House Advisor Steve Bannon said he wouldn’t cooperate with a subpoena issued by the panel. The House moved quickly told hold Bannon in contempt of Congress – sending the citation to the Justice Department for potential criminal prosecution. Five days later, the DoJ announced it would prosecute Bannon. His trial comes next July.

Former White House Chief of Staff Mark Meadows initially assisted the committee. Meadows and his counsel provided documents and electronic communications. But then Meadows said his help was over. The committee and the House immediately voted to find Meadows in contempt of Congress.

Representative Jim Jordan, a Republican from Ohio, speaks to the press in the Rayburn House Office building in Washington, D.C., U.S., on Friday, June 4, 2021. Former White House Counsel Donald McGahn is testifying behind closed doors to the House Judiciary Committee about Russia's interference in the 2016 election after a long-running legal dispute over his refusal to comply with a committee subpoena. Photographer: Ting Shen/Bloomberg via Getty Images (Ting Shen)

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So far, the DoJ hasn’t elected to prosecute Meadows. Meadows claims executive privilege. After all, he was Chief of Staff to a sitting President. And, Meadows did cooperate with the committee. Some. So, a decision by DoJ to prosecute Meadows isn’t as cut and dried as Bannon’s situation.

This is background to underscore the conundrum facing the 1/6 committee and the House if Perry and Jordan are unmovable.

It’s easier for the House and Senate to issue a subpoena to a "civilian" if they don’t cooperate with a Congressional request for documents, information or testimony. But what about a lawmaker who won’t help out with an inquiry conducted by the very legislative body in which he serves?

"Once you issue a subpoena to a sitting member of Congress, you crossed the Rubicon into dangerous Constitutional territory," said George Washington University law professor Jonathan Turley. "The Constitution has protections for members of Congress, including the Speech (or) Debate clause that's designed to give Members a certain breathing space to take on controversial issues, not just with the public, but even their own colleagues."

Article I, Section 6 of the Constitution states that lawmakers are "privileged from Arrest" during the execution of their official duties and "that shall not be questioned in any other Place."

This was an effort to prevent the executive branch from trying to intimidate legislators. Lawmakers essentially enjoy immunity from prosecution in connection with work. Such a shield likely extends to the House issuing a subpoena to a reluctant member to testify – who also happens to be a Member of the House.

FILE PHOTO: White House Chief of Staff Mark Meadows speaks to reporters following a television interview, outside the White House in Washington, Oct. 21, 2020. REUTERS/Al Drago/File Picture/File Photo (REUTERS/Al Drago/File Picture/File Photo)

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Deeper problems could emerge if the House in fact holds Perry or Jordan in contempt of Congress for ignoring a subpoena which is then referred to the Justice Department for prosecution. It’s hard to see how the DoJ could file charges against a lawmaker when facing the Speech or Debate Clause shield.

Even if Congress moved against one of its own, the courts would struggle to prosecute a Member. The reason is that Article I, Section 5 of the Constitution declares that the House and Senate "may determine the Rules of its Proceedings" and "punishing its Members for disorderly Behaviour."

In other words, it’s easy to see how Perry and Jordan could face an internal sanction from the House for their "disorderly Behaviour" – defiance of an internal Congressional probe. It’s customary for the House Ethics Committee to investigate Members for inappropriate conduct. Failing to work with a committee could fall under that standard. 

It would be up to the House and the Ethics Committee to address the conduct of Perry and Jordan. But all the House could do is vote to reprimand or censure the offending Members. This doesn’t mean the committee gets what it needs to complete its inquiry.

Steve Bannon, left, former advisor to President Donald Trump, and his attorney David Schoen, address the media after an appearance at the E. Barrett Prettyman Federal Courthouse on contempt of Congress charges for failing to comply with a subpoena from the Committee investigating the January 6th riot, on Monday, November 15, 2021. (Photo By Tom Williams/CQ-Roll Call, Inc via Getty Images) (Tom Williams/CQ-Roll Call, Inc via Getty Images)

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A spokesman for the 1/6 committee said the panel would "consider using other tools" to get compliance. But there’s no legal or historical precedent to subpoena and enforce a subpoena of a sitting Member.

However, one untested option could be "inherent contempt." Congress truly hasn’t used inherent contempt since the mid-1930s. Inherent contempt was a common practice for Congress in the late 18th and early 19th Centuries. Rather than pawn off its "contempt of Congress" charges to the executive branch, Congress carries out the order itself. Under "inherent contempt," the House could require its Sergeant at Arms to "arrest" the alleged offender and hold them for questioning.

Inherent contempt fell by the wayside more than 200 years ago because it mirrored the powers of the executive branch. So, using inherent contempt against a citizen poses a problem. But, don’t forget Article I, Section 5 where Congress has the right to discipline "its Members for disorderly Behaviour."

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It’s unclear if the House would go this route if Perry and Jordan hold out. But it could be an option.

Late 2006 and early 2007 was one of the last times the House required testimony of its own Members. The House investigated inappropriate messages sent by then Rep. Mark Foley, R-Fla., to underage, House pages. The Ethics Committee requested and received the testimony of then House Speaker Dennis Hastert, R-Ill., then Majority Leader John Boehner, R-Ohio, then Minority Leader Nancy Pelosi, D-Calif., and then Minority Whip Steny Hoyer, D-Md. All appeared before the panel voluntarily.

It’s different with Perry, Jordan and perhaps others.

And we can’t predict the future for this one – because there’s not a lot of past to go on.