As part of its investigation into the attack on the U.S. Capitol and efforts to overturn the results of the 2020 presidential election, the Jan. 6 committee has requested information and testimony from several sitting members of the House of Representatives.
The committee has also requested that telecommunications companies preserve the phone records of some members of Congress. However, Reps. Scott Perry and Jim Jordan and House Minority Leader Kevin McCarthy have all announced that they will not cooperate with the committee.
Rep. Bennie Thompson, chair of the committee, has stated there is “no reluctance to subpoena” any member who does not cooperate if their “testimony is germane to the mission of the select committee.” But other than the House and Senate Ethics Committees, it appears that no congressional committee has ever issued a subpoena to a sitting member of Congress. Some committee members, including Thompson, have raised questions about the committee’s authority to subpoena members of Congress. And numerous press outlets have reported that the committee’s authority to issue a subpoena to a member of Congress is a matter of dispute.
In this post, we offer a guide on the authority of a congressional committee to issue a subpoena to a sitting member of Congress—and the potential to have that subpoena enforced if the recipient defies it. The committee’s subpoena authority depends on three basic questions: whether its subpoenas are legally valid, whether it has a mechanism to enforce its requests, and whether the committee determines that attempting to subpoena members is worth the political and institutional costs. On the first question, the committee is very likely on solid ground. The second and third questions are far more complicated.
The Jan. 6 committee is tasked with investigating and reporting on “the facts, circumstances, and causes relating to the January 6, 2021, domestic terrorist attack upon the United States Capitol ... and relating to the interference with the peaceful transfer of power.” It is slated to issue a final report recommending corrective measures to prevent future violence, improve Capitol security and strengthen U.S. democratic institutions. The authorizing resolution for the committee specifically permits the chairman to“authorize and issue subpoenas ... in the investigation and study conducted pursuant to ... this resolution, including for the purpose of taking depositions.” And as part of its information gathering, the Jan. 6 committee has already issued subpoenas for testimony and documents to a number of people, organizations and corporations. The grant of authority from the House does not, by its terms, prevent a subpoena to a member.
Congress has no explicit constitutional power to conduct investigations or issue subpoenas. However, such powers are well-established, dating back to colonial-era state legislatures and the British parliament. In 1927, the Supreme Court held in McGrain v. Daugherty that “the power of inquiry—with process to enforce it—is an essential and appropriate auxiliary to the legislative function.” The court reaffirmed this view as recently as 2020, in Trump v. Mazars USA, LLP, a case in which the court held that separation of powers concerns are relevant in a dispute over congressional subpoenas seeking the president’s personal information.
The Mazars court also spelled out several limitations on the “broad” power of inquiry recognized in prior cases, grounded in the fact that Congress’s investigatory power is ancillary to its legislative role. First, a congressional subpoena must be “related to, and in furtherance of, a legitimate task of the Congress,” meaning it must serve a “valid legislative purpose” and must “concern a subject on which legislation ‘could be had.’” Second, the subpoena may not be issued for the purpose of “law enforcement.” Third, recipients of congressional subpoenas retain constitutional rights as well as common law and constitutional privileges.
But on these limitations, one recent case is highly favorable to the committee. In Trump v. Thompson, the U.S. Court of Appeals for the District of Columbia Circuit unequivocally held that the Jan. 6 committee has a valid legislative purpose and not an improper law enforcement purpose—a holding the Supreme Court chose not to disturb in a recent order. Thompson therefore forecloses any arguments that the Jan. 6 committee’s subpoenas violate the limitations spelled out in Mazars, at least in the D.C. Circuit.
Subpoena Issuance Challenges
This D.C. Circuit language goes a long way to answering the question of the authority to issue a subpoena to a sitting member of Congress.
Yet potential challenges to the committee’s issuance of a subpoena are still possible. They encompass issues both germane to members’ status as representatives and more general objections available to any witness.
One objection House members may raise to a subpoena is that the Jan. 6 committee is not properly constituted and therefore lacks the authority to subpoena any witnesses, an issue not raised in Thompson. Section 2(a) of the House authorizing resolution calls for the appointment of 13 committee members, five of whom are to be appointed following “consultation with the [House] minority leader,” though it does not require acquiescence to the minority leader’s recommendations. After Speaker of the House Nancy Pelosi rejected two of Minority Leader McCarthy’s recommendations, McCarthy pulled all of his nominees to the committee and the speaker declined to appoint additional Democratic members in their stead. As a result, only nine members currently sit on the Jan. 6 committee, arguably in defiance of its composition requirements. However, such arguments are unlikely to succeed. Additionally, the House has broad deference to interpret its own rules. For example, previous House select committees were originally designated to encompass members of the minority party but operated without their nomination, and similar objections have been raised by other witnesses and rejected, as it would be “improper for [a] court to say … the Speaker … does not understand House rules and the House resolution[.]”
House members may also argue that the general subpoena authority vested in the Jan. 6 committee should not be presumptively read to include the power to subpoena a member of Congress absent express authority to do so. However, such an argument would likely not stand up in court since under the Rulemaking Clause of the Constitution, Article I, Section 5, “[e]ach House may determine the Rules of its Proceedings[.]” Insofar as there is any ambiguity in the committee’s rules, a court would likely defer to the House’s interpretation, because as the D.C. Circuit has observed, “judicial interpretation of an ambiguous House Rule runs the risk of the court intruding into the sphere of influence reserved to the legislative branch,” causing any attempt at interpretation to “effectively be making the Rules—a power … reserve[d] to each House alone.” Additionally, the House has previously read a general subpoena authority vested in the congressional ethics committee to encompass the power to subpoena a member of the chamber.
The final possible challenge to a subpoena’s issuance may be one of novelty: Because a select committee has never previously subpoenaed a sitting member of Congress, the power is beyond the scope of the Jan. 6 committee. However, a legislative subpoena to a sitting member of Congress would not be wholly without precedent. Under House Rule XI, Clause 3(a)(2), the House Ethics Committee “may investigate … an alleged violation by a Member … of a law, rule, regulation, or other standard of conduct applicable to the conduct of such Member … in the performance of his duties or the discharge of his responsibilities,” and the committee may issue subpoenas as part of its inquiry. The Ethics Committee typically relies on the voluntary cooperation of members but is empowered under its rules to subpoena any witness, including a House member. Because ethics investigations occur largely outside the scope of the public eye, it is unclear whether the House Ethics Committee has ever exercised its power to subpoena a sitting member. However, some commentators have claimed that the committee “regularly” subpoenas members and that it is the only congressional committee to have done so. In addition, the Office of Congressional Ethics (OCE), an independent and nonpartisan body that investigates allegations of misconduct against House members, has recommended the House Ethics Committee subpoena sitting congresspersons on several occasions. Most recently, on July 16, 2021, the OCE proposed that the House Ethics Committee subpoena Rep. Mike Kelly to obtain information about stock trades.
Additionally, the Senate Ethics Committee has previously subpoenaed a sitting senator. That committee subpoenaed former Sen. Bob Packwood after he failed to turn over his personal diaries to the committee during an investigation. The committee successfully sought civil enforcement of its subpoena against the senator in district court, and both the D.C. Circuit and the Supreme Court declined to stay enforcement. In a 1994 decision, the D.C. Circuit noted the Constitution grants Congress the ability to discipline members and that “the Ethics Committee … perform[s] the office of a legislative branch equivalent of a grand jury, in furtherance of an express constitutional grant of authority to Congress to keep its own house in order. It is well-established that such investigative bodies enjoy wide latitude in pursuing possible claims of wrongdoing[.]” Likewise, state and local legislators, who possess absolute immunity from civil liability for legislative acts, have similarly been subject to subpoenas by their state and local legislative ethics committees.
The ethics committee precedent is not wholly analogous to that of the Jan. 6 committee. Congress’s constitutional authority encompasses the power to “punish its Members for disorderly Behaviour,” and, as the D.C. Circuit noted in the Packwood case, “to that end, the [House] has established … and … authorized the Ethics Committee to issue subpoenas[.]” The Jan. 6 committee’s subpoenas, however, would be based not on the House’s Article I disciplinary power but, rather, on the investigatory power that is auxiliary to Congress’s general lawmaking authority. A court could conclude that while subpoenas to a sitting member are proper in the context of an ethics investigation, the same power is not necessarily permissible when used with an eye toward future legislation. Alternatively, the Jan. 6 committee may have an even stronger case for the propriety of its subpoena if it argues the information sought is relevant for both legislative and disciplinary purposes. For example, Chairman Thompson’s letter requesting Jordan’s cooperation indicated that a subject of concern was Jordan’s involvement in “the activities that led to the attack on January 6th,” which could be relevant to determining whether Jordan’s actions warrant disciplinary measures. Additionally, Jordan’s testimony could be relevant for reforming the Electoral Count Act due to his alleged role working with “White House personnel … in organizing … strategies for January 6th.” The committee thus far has not framed its efforts as a disciplinary manner, but it has also not yet sought or been challenged on a subpoena to a member of the House.
It’s unlikely that the courts would rule that the committee lacks power to issue a subpoena to a sitting member. The authorizing resolution by its terms gives it this authority. Congressional ethics committees appear to have actually done it. And the courts are wary of overriding congressional understanding of congressional rules.
Challenges to Subpoena Enforcement
The bigger problem for the Jan. 6 committee is whether it can enforce its subpoena if a member were to defy it. If a witness refuses to comply with a legislative subpoena, the Jan. 6 committee has two direct options to enforce compliance, both of which require a majority vote of the House: (a) referral to the Department of Justice for criminal prosecution for contempt of Congress (as the Jan. 6 committee has already done for former White House Chief of Staff Mark Meadows and Trump adviser Steve Bannon) or (b) initiation of a civil suit in federal court seeking an order for the witness to comply. Theoretically, there is also a third option: The House could dust off its inherent contempt power to direct the sergeant-at-arms to arrest and detain the uncooperative witness, although it has not done so in a century.
In addition to formal legal enforcement through the courts, the House could turn to its internal disciplinary mechanisms. By majority vote, it could reprimand, censure or fine the member. It could also deny or limit a right, power, privilege or immunity of the member consistent with the Constitution, or exercise any other appropriate sanction as determined by the House. For instance, the House could strip the members of their committee assignments or impose monetary fines. The House has recently used both tools against members who defied House rules. In the most extreme instance, the House could also vote by a two-thirds majority to expel a member from Congress. Any challenge to such punitive measures would likely be beyond the scope of judicial review, because, as the Supreme Court put it in U.S. v. Ballin, “the constitution empowers each house to determine its rules,” a power that is “absolute and beyond the challenge of any other body or tribunal” as long as the sanction does not violate other constitutional rights. Alternatively, the House could refer the matter to the House Ethics Committee for further investigation and determination of the appropriate remedy.
Some legal commentators, such as Kimberly Wehle, have identified the Speech or Debate Clause of the Constitution as a potential barrier to enforcing a subpoena against a member of Congress. Article I, Section 6, Clause 1 states that:
The Senators and Representatives ... shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.
The Supreme Court has identified the function of the clause as protecting “the independence and integrity of the legislature” and “reinforcing the separation of powers.” The courts have interpreted the clause to immunize senators and representatives from criminal or civil liability for “legislative acts” and to provide evidentiary and testimonial privileges. Notably, in Gravel v. United States, the Supreme Court implicitly recognized that the clause provides members with testimonial immunity, shielding a member from compelled questioning.
The Speech or Debate Clause jurisprudence suggests that enforcing a subpoena directed at a member of Congress by means of prosecution by the executive branch or a civil suit initiated by Congress would raise at least three constitutional issues, none of which has a clear legal answer.
The applicability of the clause would hinge on whether the underlying actions in question were “legislative acts,” meaning they fell within the protected scope of legitimate legislative activity. This is the key issue in applying the clause, as the Supreme Court has interpreted it to cover only acts that were “clearly a part of the ... due functioning of the [legislative] process.” It does not shield “political” activities even if they were “legitimate” official acts. In Gravel, the court defined “legislative acts” to include speech or debate in either house or acts that are:
[an] integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.
In the context of communications by members in official congressional proceedings, the D.C. Circuit has distinguished between speech in response to an inquiry into the member’s official powers, which is protected by the clause, and speech in response to an inquiry into the member’s personal conduct, which is not. Notably, in that case, then-Judge Brett Kavanaugh concurred but questioned the validity of the distinction.
Yet the distinction between legislative and nonlegislative acts is fuzzy, and it is difficult to predict how a court would classify actions not analogous to past precedent—for instance, communications with the White House to block the certification of a presidential election. On the one hand, there is reason to think such communications might not constitute legislative acts because, as the Gravel court explained, “Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies—they may cajole and exhort with respect to the administration of a federal statute—but such conduct, though generally done, is not protected legislative activity.” In addition, Wehle argues that the lack of evidence of electoral fraud would suggest that actions to disrupt the certification were not legitimate legislative acts.
On the other hand, members could argue their contact with the executive was for the purpose of investigation—something held to fall under a legislative purpose in the Supreme Court’s decision in Eastland v. United States Servicemen’s Fund. That ruling might support an argument that such conduct was a protected legislative act. But courts have diverged on whether and to what extent informal contact with the executive actually falls within the clause and, as a Congressional Research Service report concludes, “there remains significant uncertainty concerning what types of Member communications with the executive branch are protected by the Clause.”
The second major question involves an unresolved circuit split over whether the clause creates a general documentary nondisclosure privilege. This privilege would mean a member of Congress could not be compelled to “disclose documents that fall ‘within the sphere of legislative activity.’” The D.C. Circuit views this as an “absolute” privilege that bars any compelled disclosure, including by subpoena, of written materials that fall within the “legitimate legislative sphere.” However, the Ninth and Third Circuits have rejected the purported nondisclosure privilege.
The existence of a documentary nondisclosure privilege could prove important in any court battle over subpoena enforcement. Assuming such a suit occurred in D.C., the court might apply both a privilege protecting the member from having to testify and a privilege preventing the member from being forced to hand over documents. The Supreme Court could potentially grant certiorari to resolve the circuit split. However, even the D.C. Circuit’s broad nondisclosure privilege arguably might not apply when the investigating branch is not the executive or judiciary but rather Congress itself.
A third major issue is that the clause states that members “shall not be questioned in any other Place,” which could stymie efforts by noncooperative members to shield themselves with the clause. Wehle reads the plain text to “suggest that inquiries in Congress itself—as distinct from the criminal-justice system, which is controlled by the executive branch, or a civil lawsuit brought before the judicial branch—are fair game.” Indeed, in Gravel, the Supreme Court accepted as “incontrovertible” a senator’s argument that the clause protected him “from questioning elsewhere than in the Senate,” implying the appropriateness of questioning in the Senate. That said, as Wehle acknowledges, “no court has faced this precise issue to date.”
But the underlying purpose of the clause may suggest its inapplicability in the context of a congressional investigation into its own members. According to the Supreme Court in United States v. Johnson (1966), the clause’s privilege was “born primarily of a desire … to prevent intimidation by the executive and accountability before a possibly hostile judiciary.” Arguably, no threat to legislative independence or separation of powers implications is raised by a congressional subpoena to a member of Congress. However, while Congress can question a member, a congressional subpoena, to the extent it is enforced by judicial order, may run afoul of the Speech or Debate Clause. That enforcement may raise constitutional concerns because, as the court stated in Eastland, “judicial power is still brought to bear on Members of Congress and legislative independence is imperiled.”
Given those issues, Congress would be on its strongest legal footing if it chose not to refer a member who defied a subpoena for prosecution by the executive. Instead, it could rely on its own disciplinary processes. If Congress levies fines for noncooperation, for example, or if it strips members of committee assignments, those actions would almost certainly not violate the Speech or Debate Clause.
But there’s one other wrinkle. While the clause might be an impediment to Congress enforcing a subpoena against one of its own members, it might also cut the other way, preventing a member from suing to quash the subpoena. Courts have generally interpreted the clause to shield lawful congressional subpoenas from judicial interference. In Eastland, the Supreme Court considered an action to enjoin a congressional subpoena. It held that because the activities of the Senate subcommittee and its members fell within the “legitimate legislative sphere,” a lawful subpoena was protected by the “absolute” protections of the Speech or Debate Clause and thus “immune from judicial interference.” Therefore, assuming a court found the Jan. 6 committee’s investigation to be a legislative act, the court would arguably be barred from enjoining its enforcement. However, judicial noninterference is not guaranteed, as the court would still analyze whether the subpoena was lawful. That is why the Mazars court was willing to police whether a subpoena targeting the personal information of the president conformed with the limit that a congressional subpoena be “related to, and in furtherance of, a legitimate task of the Congress.”
In addition to the legal factors, practical political considerations will be relevant to the Jan. 6 committee’s efforts to enforce a subpoena. Notably, if a member refused to comply, the committee would need a majority vote of the entire House in order to refer the matter for prosecution or authorize a civil suit. A vote in favor of prosecution is not guaranteed given the Democratic majority’s slim margin and the possible reluctance of some lawmakers to set a potentially dangerous precedent. Indeed, to enforce a subpoena to a member over actions arguably related to official duties could establish a new and institutionally corrosive norm, and could invite tit-for-tat measures from a future GOP majority.
The Jan. 6 committee will also need to make strategic decisions regarding the best use of its time. Turning to the courts would require the judiciary to decide the scope of the congressional subpoena power in a previously untested context. Even if the committee believes it has the merits on its side, judicial enforcement would likely result in protracted litigation, as illustrated by the prosecution of Bannon and the years-long effort to enforce a congressional subpoena against former White House Counsel Don McGahn. Such efforts would take time that the Jan. 6 committee does not have. CNN has reported that the committee is aiming to release its final report this fall, and its days will surely be numbered if the GOP takes control of the House in the November elections.
This is another reason the committee may prefer to subpoena members and seek to coerce their compliance through legislative penalties, such as committee stripping or monetary fines. As noted by Irvin B. Nathan, former general counsel of the House, such a course would allow the committee to give its subpoenas teeth while avoiding the constitutional and practical concerns of litigating the subpoenas in the courts. However, even this more limited action would establish a new norm. There is no indication that any committee other than an ethics committee has ever previously subpoenaed a member of Congress. The Jan. 6 committee lacks institutional safeguards to prevent its powers from being deployed toward partisan ends. By contrast, the House Ethics Committee has a balanced partisan divide and a requirement that a majority of members authorize a subpoena, a recommendation for sanction or other disciplinary measure.
If the Jan. 6 committee is concerned about norm-breaking, it could choose a safer course whereby a noncompliant member is referred to the House Ethics Committee for resolution. Such an outcome would be the least likely to create a new precedent for the House but may also be the least likely to produce the underlying information sought by the committee. Given that the Jan. 6 committee’s limited options for successfully obtaining information by means of subpoena, and the potentially dangerous norms a subpoena battle could create, the committee may simply forgo any attempt to subpoena members and instead rely on information from other sources.