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Sunday, August 7, 2022

Are member subpoenas a wise move for the January 6 Select Committee?

To append a new ending to an old Aesop fable’s moral: “Be careful what you wish for; it just might come back around and bite you.”  That precept sprung to mind with talk that the House Select Committee to Investigate the January 6 Attack on the United States Capitol might subpoena sitting Republican members to testify about what they knew and did both before and during that deadly Wednesday riot. Certainly, the select committee must get to the bottom of how and why it happened, both to better inform the Congress and American people and to ensure it never happens again. Members of both parties should voluntarily provide any relevant information they have to the select committee so it can pull together the fullest and most accurate account possible. But to compel members to testify can produce both unintended and predictable consequences.

Due to the partisan moves and countermoves by Speaker Nancy PelosiNancy PelosiHouse Democrats urge more conservation, transportation funds in reconciliation package Senate budget resolution includes Interior funding after Democratic urging Widow of officer who died by suicide after Capitol riot pens op-ed seeking ‘line of duty’ recognition MORE (D-Calif.) and Republican Leader Kevin McCarthyKevin McCarthyRepublicans are the 21st-century Know-Nothing Party Jan. 6 Committee will reconvene after Labor Day — Republicans should be scared The Hill’s 12:30 Report – Presented by AT&T – Rafael Nadal spotted around D.C. during Citi Open MORE (Calif.), the originally authorized 13-member select committee of eight Democrats and five Republicans has been shrunk to a lopsided nine members, with seven Democrats and two Pelosi-appointed Republicans (after the Speaker refused to appoint two Republican nominees). Given the minority party’s subsequent withdrawal of its other three nominees to boycott the proceedings, it is unlikely that any subpoenaed Republicans will even show-up to testify, let alone provide useful information. Moreover, looking down the road, one can expect that attempts to force GOP members to testify will open the flood gates for the use of similar tactics if and when party control of the chamber flips to Republicans and they turn the tables on Democrats: turnabout can be foul play.

The central question is whether a House committee should use compulsory process on members given the natural reluctance of members to grill or be grilled by their colleagues. Even in these highly charged partisan times, norms of collegiality and reciprocity still count for something. That is not to say member subpoenas have not been used previously in investigations. A survey of the precedents reveals that they certainly have been issued before, though it is a checkered history with mixed results.

An early precedent of House members being called-on to provide relevant materials occurred in 1808 when the House was debating whether to investigate the conduct of U.S. Army Commander General James Wilkinson (3 Hinds’ Precedents, sections 1726 and 1811).  Wilkinson, who was stationed on our southwest border with Texas, was rumored to be a paid agent of the Spanish government.

In that instance, Rep. John Randolph of Virginia offered a resolution to refer the matter to the executive branch for further investigation. Other members proposed forming a select committee to investigate. In the course of that debate a resolution was offered by Rep. William Burwell of Virginia, “requesting” that Rep. Randolph and Louisiana Territorial Delegate Daniel Clark provide relevant materials and statements at the House Clerk’s table. 

The record does not make clear whether the request was converted into a formal subpoena, though a second citation to the case indicates that the House “demanded” the information from them. Both men readily complied with the summons as friendly witnesses. The House then voted to refer the matter to the president after rejecting a select committee inquiry. (Despite four official inquiries and two court martials, documentary evidence did not come to light until after Wilkinson’s death that he had indeed been a paid spy for Spain.)

A subsequent precedent in 1837 involved a House Select Committee to investigate the conduct of the Executive Departments of the Government — a very broad mandate, to be sure (3 Hind’s, sec. 1777).  The select committee chairman, Rep. Henry Wise, a former Democrat from Virginia turned Whig, issued a subpoena for the testimony of Rep. John Bell, a Tennessee Democrat — the same party as sitting President, Martin Van Buren.  

In response, Bell issued a blistering, five-paragraph statement of protest which led-off by characterizing the subpoena as “a private injury, a gross personal injustice, and an act… [that is] oppressive, tyrannical and without any sufficient ground of public interest or necessity to justify it.”  He went on to charge that the committee majority was stacked against him and the administration and that the subpoena violated his constitutional immunity from being questioned in any other place for a speech delivered in the House.

Notwithstanding all this, Bell agreed in the final paragraph to waive his immunity and testify as to all matters of fact and opinion, “except as I may think proper to withhold any matter of private confidence or the names of those from whom I may have received material information.”      

In its final report, the select committee indicated it did not consider Bell’s position as “just or reasonable.”  That was likely referring to his claim of immunity from being questioned in “any other place” since, by precedent and custom, a House committee is not considered another place.  

However, Bell’s final caveat is what should concern members the most: the prospect of being asked to reveal under oath the nature of private conversations and the names of those with whom they occurred, whether with other members, with constituents, or the president. Such a refusal, obviously, cannot and should not extend to knowledge of a criminal conspiracy. Otherwise the reluctance to testify does go to the heart of what members consider to be sacred: the trust others place in them to confidentially discuss personal and policy matters.

Don Wolfensberger is a fellow at the Woodrow Wilson International Center for Scholars and the Bipartisan Policy Center, former staff director of the House Rules Committee, and author of, “Changing Cultures in Congress: From Fair Play to Power Plays.”  The views expressed are solely his own. 

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