The five House GOP members who ignored subpoenas by the Jan. 6 committee will likely emerge unscathed, as the panel’s options to punish them for noncompliance are legally limited.
GOP Reps. Scott Perry (PA), Jim Jordan (OH), Andy Biggs (AZ.), and Mo Brooks (AL), along with House Minority Leader Kevin McCarthy, were all subpoenaed at various points by the committee for their actions in the run-up to and on Jan. 6, 2021. All of the congressmen have refused to cooperate with the panel, and due to constitutional limits on Congress holding its own members accountable within the judicial system, the committee would be unable to refer them for prosecution.
“The Speech or Debate Clause makes it clear that Congress doesn’t hold members of Congress accountable in the judiciary or other places in the government,” Rep. Jamie Raskin (D-MD), who serves on the committee, told The Hill. “Members of Congress are only held accountable through Article One in their own chambers for their actions.”
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It means the members likely won’t be included in the committee’s planned referrals to the Justice Department. That would likely leave the committee with one sole recourse: The House Ethics Committee.
But the potential for any action was stymied by the 2022 midterm results, as the House majority shifting to Republicans gives them control over committee chairmanships. The committee’s desire to go after its own members would likely be nonexistent, particularly when lawmakers such as Reps. James Comer (R-KY) and Jordan have already indicated committees such as Oversight and Judiciary would focus on President Joe Biden and his family.
The committee’s timeline to refer the members to the committee is also limited, as the Jan. 6 panel will likely be disbanded once Republicans take control of the House. If, however, the noncompliance is referred, considered, and got to a point where a report was published, it would likely amount to a mere public shaming of the lawmakers.
“In today’s world, I think it’s just going to be spun as, ‘Oh, this is just a partisan attack. It’s all about these people hating Trump and trying to go after him through us, who are his allies in Congress,’” Dylan Hedtler-Gaudette, government affairs manager at the Project on Government Oversight, told The Hill. “I don’t think there’s going to be any amount of contrition or introspection on the part of the people who are being referred. I suspect that it’s just going to be shrugged off the same way they’re sort of shrugging off the Jan. 6 committee.”
The members could still be prosecuted by special counsel Jack Smith, who could determine whether the members’ actions in the run-up to the Capitol riot were outside the scope of their duties.
Smith, however, would have to balance the political ramifications of prosecuting sitting members of Congress, including the potential next Speaker of the House.
