Democrats’ Jan. 6 subpoena-palooza sets dangerous precedent
“We have quite an exhaustive list of people. I won’t tell you who they are.” With those words, House Select Committee Chair Bennie Thompson (D-Miss.) confirmed that a subpoena storm was about to be unleashed in the investigation of the Jan. 6 riot in Congress. The targets would include Republican members, including House Minority Leader Kevin McCarthy (R-Calif.) and Rep. Jim Jordan (R-Ohio), who have already been told to preserve their phone records to be surrendered to the committee. The Democrats are reportedly trying to prove their prior claims that Republicans conspired or assisted “insurrectionists,” even though the FBI reportedly found no evidence of a planned insurrection.
The Democrats’ move to investigate members of the opposing party is a dangerous precedent in an institution that has always protected the privacy and confidentiality of phone and office records.
Two months ago, House Intelligence Committee Chair Adam Schiff (D-Calif.) was on practically every network denouncing one of “the most dangerous assaults on our democracy” — meaning the Trump administration’s search of phone log information related to Schiff and Rep. Eric Swalwell (D-Calif.) while looking for leakers. For his part, Swalwell publicly fretted about this “fragile time for our democracy” if members could have their phone logs seized through secret surveillance orders issued to telephone companies.
After those disclosures, I testified in Congress on the need for greater protections for from secret surveillance for members and reporters alike. At the hearing, the Democratic members expressed nothing short of disgust at the notion of such seizures of member phone logs.
Thompson has now admitted that he has sent letters to telecommunications companies to preserve documents — including phone logs — for hundreds of people, including members of Congress. He would offer only a type of “the usual suspects” response when asked for specificity: “you know, in terms of telecom companies, they’re the ones that pretty much you already know, maybe the networks, the social media platforms, those kinds of things.” Reports indicate that among the “hundreds” will be Trump family members and leading Republicans. The House has decided to subpoena them all and let God (and the courts) sort them out.
This is not the first such subpoena tsunami in the House. A couple years ago, Schiff unleashed a massive secret surveillance order to companies. Schiff expressly barred the companies from informing targets — another abusive tactic that was the subject of the June House hearing. That practice was denounced by many as negating Section 222 of the Federal Communications Act which allows for targets to challenge such orders.
As with the Schiff subpoenas, Thompson is not only refusing to list names of the targets, he has also asked the companies to keep the subpoenas secret. It is not clear that Congress has such enforcement authority for secret subpoenas. What’s more, the Democratic House Judiciary Chairman denounced such secrecy demands just last month, saying “they deny American citizens, companies, and institutions their basic day in court and, instead, they gather their evidence entirely in secret.”
The storm of secret subpoenas also seems to run against the thrust of recent Supreme Court decision, Trump v. Mazars, which addressed congressional subpoenas seeking personal information of the president. In sending the case back for further consideration, the court recognized the broad authority of Congress to issue subpoenas; however, Chief Justice John Roberts wrote that congressional subpoenas must address a “valid legislative purpose” and be “related to, and in furtherance of, a legitimate task of the Congress.”
The “task” at hand in this subpoena storm is highly questionable. The announcement follows an extensive investigation by the FBI and the Justice Department which reportedly did not find any planned insurrection on Jan. 6. The vast majority of the tens of thousands of protesters were not charged. Of the roughly 570 people arrested, virtually all face relatively minor charges for trespass or parading. Only 40 face conspiracy charges. As with violent protests in places like Portland and Seattle, a small percentage of Jan. 6 protesters came prepared and eager for violence and property destruction.
The FBI has already seized the phone records for those arrested, including the small number facing more serious charges. Nevertheless, according to media reports, they found that “90 to 95 percent of these are one-off cases … There was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.”
Moreover, despite federal investigations, neither the FBI nor Congress found any evidence to support the much publicized claims of Democratic members that Republican colleagues helped plan or supplied access or “reconnaissance” tours to “insurrectionists.”
As someone who has long favored congressional authority (and once represented the House), my natural default still remains with the authority of the House to acquire records under Article I. However, even if there were a cognizable legislative purpose, it would not make this move right. Democratic leaders, it seems, clearly do not like the fact that the FBI did not establish a conspiracy to overthrow the country or identify co-conspirators among their Republican colleagues. So, Congress apparently will substitute its own investigation by a special committee entirely controlled by Democrats with virtually no Republican members.
Of course, this is not what Schiff previously denounced as the “politicization of the Justice Department.” Congress is by definition politicized, which is why such fishing expeditions targeting the opposing party are so dangerous. It is using subpoenas to try to embarrass or label members of the minority.
The use of subpoenas for political purposes is nothing new, particularly to paint others as “un-American.” In 1957, the Supreme Court reviewed the contempt conviction of a union official, John Thomas Watkins, who refused to name communist union members to the House Committee on Un-American Activities. The Supreme Court overturned the conviction 6-1, and Chief Justice Earl Warren wrote that “there is no congressional power to expose for the sake of exposure.” Citing the statements of House members, the Court found that “the predominant result can only be the invasion of the private rights of individuals.”
As in the Watkins case, it would seem the point here is to establish that key figures of the opposing party are un-American or “insurrectionists.” Indeed, Rep. David Cicilline (D-R.I.) even sought to censure members who refused to call the riot an “insurrection.”
There are times when the Congress may have serious concerns over whether an administration scuttled or undermined an investigation. No such claim has been made here.
This is a fishing expedition on an oceanic scale.
Jan. 6 remains a national disgrace and a desecration of our constitutional process. Many of us welcomed any further inquiries that might shed light on what occurred or what might have prevented this tragedy. However, that is no license to weaponize a national tragedy for political purposes.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.