House Minority Leader Kevin McCarthy sent a letter via his lawyer to the House select committee investigating the January 6, 2021, attack on the US Capitol, outlining why he will not comply with his subpoena as it stands and delivering a list of demands in order to move forward.
McCarthy’s attorney, Elliot S. Berke, criticized the committee from all angles, claiming the subpoenas it issued to lawmakers are not constitutional or valid because it failed to meet certain legal requirements.
The Republican leader’s argument that the committee is not legal or constitutionally valid echoes those made by a number of subpoena targets who have attempted to make a legal claim that they do not need to comply. Judges have rejected that argument.
US District Court Judge Tim Kelly said in a recent case involving the committee’s request for documents from the Republican National Committee and one of its vendors that the request was well within its scope as a legislative body.
In addition to McCarthy, the panel subpoenaed four other House Republicans: GOP Reps. Jim Jordan of Ohio, Andy Biggs of Arizona, Mo Brooks of Alabama and Scott Perry of Pennsylvania. Jordan, Biggs and Perry have also pushed back on subpoenas the committee has issued them.
January 6 committee spokesperson Tim Mulvey said in a Friday statement that “McCarthy and other Members who have been served subpoenas are hiding behind debunked arguments and baseless requests for special treatment.”
“Claims challenging the composition of the Select Committee and the legitimacy of its subpoenas have repeatedly failed in the courts. The Select Committee has interviewed more than a thousand people, and the vast majority of witnesses who have been subpoenaed have complied with the law,” Mulvey said, adding that the panel’s chairman will formally respond “in the days ahead” to those who have failed to comply.
In the letter, Berke specifically focused on the make-up of the committee, claiming it was partisan in nature and did not have the necessary input from House Republicans in order to issue subpoenas to members of Congress.
While House Speaker Nancy Pelosi rejected McCarthy’s selection of Jordan and GOP Rep. Jim Banks of Indiana to serve on the committee, she would have accepted the Republican leader’s other three picks. Instead, McCarthy pulled the rest of his proposed members from consideration. Pelosi ultimately selected GOP Reps. Liz Cheney of Wyoming and Adam Kinzinger of Illinois to serve on the panel.
Narrowing in on the committee’s investigative focus, Berke accused the committee of using the federal government to “attack perceived political rivals” and warned its actions could “open Pandora’s box and damn this institution to partisan ‘investigations.’”
McCarthy, he said, has no new information to offer the committee, and he suggested the panel should ask Cheney, who served as GOP Conference Chair during the time period the committee wants to discuss with McCarthy, if it wants further insight into House Republican leadership.
McCarthy and Cheney became public political rivals when the Republican leader supported a campaign to oust the Wyoming Republican from her leadership post because she outwardly criticized former President Donald Trump for the role he played in the attack.
McCarthy’s attorney in the letter also went as far as to say some members on the panel are overreaching by claiming to act like law enforcement. The panel has been clear that its role is not to prosecute any crimes, but to simply refer any crimes that its investigation uncovers, if any, to the Department of Justice.
“In composition, in conduct, in press releases, public statements, interviews, and correspondence, the Select Committee is clearly not acting within the confines of any legislative purpose,” Berke wrote. “Its only objective appears to be to attempt to score political points or damage its political opponents – acting like the Democratic Congressional Campaign Committee one day and the Department of Justice the next.”
Berke laid out McCarthy’s demands that he wants met before he will consider how to move forward with the subpoena. Those include: Outlining what topics and documents the panel plans on using in a deposition, providing the legal and constitutional rational for both, naming the ranking minority member was who was consulted in advance of issuing subpoenas to Republican lawmakers and who the ranking minority member and counsel would be in a deposition, and limiting any deposition to one hour per side, alternating between minority and majority counsel.
In its initial letter to McCarthy in January seeking his voluntary cooperation, the panel made clear it wanted to question him about his communications with Trump, White House staff and others in the week after the January 6 attack, “particularly regarding President Trump’s state of mind at that time.”
The committee also wanted to understand how McCarthy’s public comments since the attack had changed over time from critical of Trump to in defense of him and questioned whether Trump pressured him to change his tone when the pair met in late January 2021.
Since the panel’s letter to McCarthy, new audio revealed that in the days following the insurrection, the minority leader had considered asking Trump to resign. Audio has also exposed that McCarthy told Republican lawmakers on a private conference call that Trump had admitted bearing some responsibility for the deadly attack.
The panel first reached out to Jordan, one of Trump’s staunchest allies on Capitol Hill, in December to learn more about communications he had with Trump on January 6, and with Trump allies who were stationed in the Willard Hotel war room in the days leading up to the attack.
This story has been updated with additional details Friday.