Congress has the power to subpoena its own members

As the Jan. 6 select committee struggles to get to the bottom of what happened last January at the U.S. Capitol, one obstacle is the refusal of some members of Congress to provide information about their potential role in the insurrection. This is an unusual situation, but congressional power in this arena is clear: Congress can subpoena its own members to provide documents or testimony to the committee.

The imperative of understanding the role of lawmakers in the events of Jan. 6 has been clear from the start. Was there knowledge of the rioters’ plans? Did members instigate or exacerbate the events, or offer rioters tours that helped facilitate the attack? What communications were members exchanging with President Donald Trump, other government officials and protesters during the melee?

Since then, disclosure of emails and texts — from former Trump chief of staff Mark Meadows, conservative media figures and protest leaders — support the need to explore these questions. Specifically, the committee wants to hear from Reps. Scott Perry, R-Pa., and Jim Jordan, R-Ohio, who have claimed the inquiry is political and the requests to them unprecedented, and have said they will not voluntarily cooperate.

On Wednesday, the committee formally requested an interview with House Minority Leader Kevin McCarthy, R-Bakersfield. That leads to the question of whether the committee, as it has done for former administration officials and private persons, can compel testimony and document production from the members’ colleagues. Put another way, are members of Congress above the law?

They shouldn’t be. The select committee is exercising the core investigative powers of Congress, recognized by the Supreme Court since 1880. It is undisputed that Congress has inherent power to investigate, including issuing and enforcing subpoenas, so long as its inquiry is duly authorized and has a proper legislative purpose, and its requests are pertinent to that purpose.

Republicans have argued that the select committee was improperly formed because House Speaker Nancy Pelosi, D-Calif., rejected the members named by McCarthy. But a court — citing the separation of powers and Congress’s authority to set its own rules — is unlikely to agree with that challenge. The committee has stated its legislative purposes, including possible amendments to the Electoral Count Act of 1887 and various agency appropriations, and the information sought is within its oversight mandate.

Given the breadth of the judiciary’s deference to the discretion of Congress, challenges to the purposes of the inquiries or relevance of the requests are also likely to fail.

In the context of ethics investigations, congressional committees routinely seek — and if necessary, compel —members to provide information as part of their authorized work. No member has successfully challenged such a request on the ground that a committee has no power to seek or obtain such relevant information.

There may be no precedent for such compulsion outside the ethics process — but there is also no precedent for what happened on Jan. 6 and for the accompanying need to determine what role lawmakers might have played before and during the uprising. In past years, before the current period of extreme polarization, investigative committees might have been able to rely on lawmakers’ good-faith willingness to cooperate with colleagues or desire to clear their names. Those days are long gone.

The Constitution’s speech or debate clause buttresses the argument for congressional authority. The provision provides that “for any Speech or Debate in either House,” lawmakers “shall not be questioned in any other Place.” In this circumstance, the “Place” where these questions are being asked is Congress, and the clause provides constitutional support for the committee’s requests.

Indeed, one irony of the Republicans’ successful opposition to creating a special commission to investigate Jan. 6 is that such a commission, which would have included both lawmakers and experts from outside Congress, would probably have allowed assertion of “speech or debate” protections to shield members from being subpoenaed in a way that a members-only panel does not.

It should not have to come down to another protracted legal battle for the Jan. 6 committee to do its work to report on one of the worst days in our nation’s history. However, if members refuse to cooperate, the committee has all the authority it requires to compel getting the information it needs.