The congressional committee investigating the January 6, 2021, assault on the U.S. Capitol by a mob supporting former President Donald Trump took the extraordinary step Thursday of issuing subpoenas to five sitting members of the House of Representatives, demanding that they provide testimony about their knowledge of the events leading up to the attack, the attack itself and its aftermath.
The representatives who received subpoenas, all Republicans, are Minority Leader Kevin McCarthy of California, the most senior Republican in the House; Jim Jordan of Ohio; Scott Perry of Pennsylvania; Andy Biggs of Arizona; and Mo Brooks of Alabama.
All five members were asked to testify voluntarily but refused to do so, the committee's chairman, Representative Bennie Thompson, a Democrat from Mississippi, said in a statement.
"The Select Committee has learned that several of our colleagues have information relevant to our investigation into the attack on January 6th and the events leading up to it," Thompson said. "Before we hold our hearings next month, we wished to provide members the opportunity to discuss these matters with the committee voluntarily.
"Regrettably, the individuals receiving subpoenas today have refused and we're forced to take this step to help ensure the committee uncovers facts concerning January 6th," Thompson said. "We urge our colleagues to comply with the law, do their patriotic duty, and cooperate with our investigation as hundreds of other witnesses have done."
The committee is investigating the assault on the Capitol, during which the mob attempted to block Congress from certifying President Joe Biden's victory in the 2020 presidential election. It is also looking into the efforts to convince various state and federal authorities to falsely assert that the election was tainted by fraud.
In its release, the committee laid out why it wants to speak with each of the five members.
McCarthy, it said, was in communication with former President Trump and White House staff before, during and after the assault. Evidence has been made public that McCarthy said he had heard Trump accept that he was, to some degree, personally responsible for the attack.
Jordan, the committee said, was in contact with the president and the White House throughout, including during discussion about "overturning" the election.
Perry, among other things, "was directly involved with efforts to corrupt the Department of Justice" by installing a Trump loyalist as acting attorney general, the committee said.
Biggs was involved in planning the events of January 6 and in bringing protesters to Washington, the committee said. He participated in pressuring state officials to overturn election results and reportedly sought a preemptive pardon from President Trump.
Brooks, the committee said, participated in encouraging the attack on January 6 and had described conversations in which the former president pressed him to "rescind" the election results. Brooks and his staff also pressured then-Vice President Mike Pence to illegally refuse to accept electoral votes from certain states.
Next steps unclear
The letters sent to the five congressmen include dates for them to appear before the committee later this month, but whether they will comply remains an open question. So far, the committee has seen several of its subpoenas go ignored.
A number of associates of former President Trump, including some former White House staff, have refused to testify voluntarily before the committee, and when subpoenaed, have refused to comply, often citing executive privilege, the ability of the president to keep certain internal White House communications confidential. Some now face potential criminal prosecution, after the committee referred them to the Justice Department.
Former White House Chief Strategist and Senior Counselor Steve Bannon was indicted last November and faces trial on a charge of contempt of Congress.
Others who have refused to testify include former White House Chief of Staff Mark Meadows, former White House Deputy Chief of Staff for Communications Dan Scavino, and former Director of the Office of Trade and Manufacturing Policy Peter Navarro. The committee has referred all three to the Department of Justice.
It is unclear whether federal prosecutors will indict Meadows, Scavino and Navarro. Their claims of executive privilege might carry more weight because they were employed in the White House before, during and after the attack on the Capitol.
In the early stages of the inquiry, Meadows had been cooperating with the investigation and provided text messages he sent and received in the days surrounding January 6. The committee has used these messages to establish who was in contact with the former president during the assault. Meadows has since withdrawn his cooperation.
In theory, the House has the legal authority to arrest individuals who defy congressional subpoenas. The House sergeant-at-arms could take into custody any of the members who refuse to appear before the committee.
In practice, however, that authority is virtually never exercised, and doing so would create a precedent that Democratic leaders in the House would almost certainly prefer to avoid.
It is also unclear whether the Justice Department would indict sitting members of Congress for refusing to comply with its subpoena, so it is far from certain that the threat of criminal liability will compel the five subpoenaed lawmakers to appear.
The committee could opt to take its case to civil court. However, its aim is to hold hearings presenting its findings beginning on June 9. Any civil suit is bound to drag on for months, at minimum.
Since the creation of the committee last year, legal experts have been wondering what would happen if it issued subpoenas to sitting members of Congress.
"Will these subpoenas withstand legal scrutiny?" University of Baltimore law professor Kimberly Wehle wrote in The Atlantic in August. "There is no established historical or legal precedent regarding congressional power to enforce subpoenas against members of Congress."
There would be strong arguments in favor of the committee's position, she said, but vindicating its claims might take time.
"Presumably, reluctant GOP members in receipt of subpoenas from the select committee would welcome a court battle, as litigation would delay the committee's work for months and any ruling would likely be appealed to the Supreme Court," Wehle wrote.
An appeal to the Supreme Court would take time — something the committee does not have in abundance. The midterm elections are likely to shift control of Congress to the GOP, which would almost certainly disband the committee and put an end to its investigation.