The Jan. 6 select committee’s request to speak with Rep. Scott PerryScott Gordon PerryHouse has the power to subpoena its members — but does it have the will? Jan. 6 committee asks Ivanka Trump to sit for interview GOP's McCarthy has little incentive to work with Jan. 6 panel MORE (R-Pa.) could foreshadow a flurry of similar requests to others in Congress while highlighting the challenge of getting testimony from sitting lawmakers who may have been involved in former President TrumpDonald TrumpFormer chairman of Wisconsin GOP party signals he will comply with Jan. 6 committee subpoena Overnight Defense & National Security — Pentagon tells Russia to stand down Billionaire GOP donor maxed out to Manchin following his Build Back Better opposition MORE’s efforts to remain in the White House.
A Monday letter from the committee requested Perry’s “voluntary cooperation” in explaining his role in Trump’s pressure campaign at the Department of Justice, including introducing him to the man willing to forward investigations into alleged claims of voter fraud and pressure states to delay certification of their election results.
But the move sparked pushback from Perry, who on Tuesday said he would decline to meet with the committee’s investigators, raising questions over whether the panel will take the remarkable step of subpoenaing testimony from a colleague.
“I stand with immense respect for our Constitution, the Rule of Law, and the Americans I represent who know that this entity is illegitimate, and not duly constituted under the rules of the US House of Representatives. I decline this entity’s request and will continue to fight the failures of the radical Left,” Perry said Tuesday, adding the committee was the work of a Democratic Party “who desperately seek distraction.”
But the committee quickly made clear that Perry may face a formal subpoena if he doesn’t comply with its demands.
That includes not only sitting for an interview but turning over all his communications with Trump, the Trump legal team, and anything related to Jan. 6 or its planning.
“The Select Committee prefers to gather relevant evidence from members cooperatively, but if members with directly relevant information decline to cooperate and instead endeavor to cover up, the Select Committee will consider seeking such information using other tools,” a committee spokesman said Tuesday.
Committees often send letters to those they are interested in speaking with before issuing a subpoena, a courtesy not just extended to lawmakers.
But the tactic also nods to the delicate nature of the issue, leaving Democrats to decide whether to break a precedent as they risk losing control of the House in the midterms.
“The issue of setting a precedent is one that they will be careful about, and I think that they’ll probably conclude that given the magnitude of what happened and the importance of the investigation that it’s worth continuing to look into it,” said Neil Eggleston, who served as White House counsel to former President ObamaBarack Hussein ObamaGlobal Health, Empowerment, and Rights Act will permanently end to harmful global gag rule Incoming Georgetown Law administrator apologizes after backlash over Supreme Court tweets Ex-Education Secretary Duncan considers Chicago mayor bid MORE and as counsel to the House committee investigating the Iran-Contra affair.
“He’s refused to cooperate, so really their choices are to stand down and not pursue information from him or to issue a subpoena. There really aren't any other options.”
Perry is one of a number of lawmakers who may be of interest to the committee.
The panel’s investigators have already sat with Ali Alexander, a “Stop the Steal” rally organizer who has previously said he had discussions with Reps. Mo BrooksMorris (Mo) Jackson BrooksThese Senate seats are up for election in 2022 Judge questions Trump's claim of 'absolute immunity' in Jan. 6 lawsuits Alabama GOP gears up for fierce Senate primary clash MORE (R-Ala.), Andy Biggs (R-Ariz.), and Paul GosarPaul Anthony GosarJan. 6 committee subpoenas leaders of 'America First' movement Lawmakers coming under increased threats — sometimes from one another McCarthy says he'll strip Dems of committee slots if GOP wins House MORE (R-Ariz.).
“I was the one that came up with the Jan. 6 idea,” he said in a video.
“We four schemed up of putting maximum pressure on Congress while they were voting,” he said in a since-deleted post, as part of an effort to have people “hearing our loud roar from outside.”
The men have denied their involvement, but two sources that spoke to Rolling Stone outlined “dozens” of planning briefings, adding that those who either participated or sent top staffers include the three men as well as GOP Reps. Marjorie Taylor GreeneMarjorie Taylor GreeneGOP efforts to downplay danger of Capitol riot increase The Memo: What now for anti-Trump Republicans? Rep. Marjorie Taylor Greene says she's meeting with Trump 'soon' in Florida MORE (Ga.), Lauren BoebertLauren BoebertMask rules spark political games and a nasty environment in the House Boebert asked Jewish visitors to Capitol if they were doing 'reconnaissance': report GOP Reps. Greene, Clyde accrue nearly 0K in combined mask fines MORE (Colo.), Madison Cawthorn (N.C.) and Louie GohmertLouis (Louie) Buller GohmertFocus on Perry could mean more subpoenas, challenges for Jan. 6 panel Members of Congress not running for reelection in 2022 House Ethics panel dismisses security screening fine issued to GOP lawmaker MORE (Texas.).
The committee has also recently released text messages from GOP lawmakers to Trump chief of staff Mark MeadowsMark MeadowsThe Hill's Morning Report - Who will replace Justice Breyer? Are the legal walls closing in on Donald Trump? Jan. 6 probe roils Cheney race in Wyoming MORE. Though unidentified by the committee, Rep. Jim JordanJames (Jim) Daniel JordanReps ask Capitol Police Board for information on 'insider threat awareness program' Are the legal walls closing in on Donald Trump? Biden: A good coach knows when to change up the team MORE (R-Ohio) has said one of the texts was forwarded by him, passing along the pleas of a DC lawyer.
“On Jan. 6 2021, Vice President Mike PenceMichael (Mike) Richard PenceJan. 6 panel subpoenas 14 involved in false electors scheme Biden leading Trump, DeSantis by similar margins in new poll Best path to Jan. 6 accountability: A civil suit against Trump MORE, as President of the Senate, should call out all electoral votes that he believes are unconstitutional as no electoral votes at all,” the text read.
Jeff Robbins, a former assistant U.S. attorney who also previously served as chief counsel for an investigations subcommittee for the Senate Homeland Security Committee, said members of Congress can be subpoenaed just like anybody else.
“It might well escalate into a subpoena. There's no reason on God's green earth, it seems to me, that a congressional committee investigating the circumstances surrounding insurrection aren't entitled to get information from any source,” he said.
But Eggelston said the committee would be well served to bolster its case by showing how previous investigative work has led them to Perry and that they are interested in actions that extend beyond his duties as a congressman.
“They need to try to get as much information from other sources first before going to him to make it clear that this isn't something they do lightly,” he said.
“Another point is they need to show they are not investigating his legislative conduct but rather his actions in trying to help President Trump’s work in the Justice Department. Getting the Justice Department to be on his side are not legislative activities, but that’s something you want to be careful and make clear that’s not what they're doing,” Eggelston added.
The letter from the committee to Perry nodded to some of these issues, with Chair Bennie ThompsonBennie Gordon ThompsonFormer chairman of Wisconsin GOP party signals he will comply with Jan. 6 committee subpoena Jan. 6 panel subpoenas 14 involved in false electors scheme Jan. 6 panel's subpoena furthers complications for Rudy Giuliani, DOJ MORE (D-Miss.) noting the committee has “tremendous respect for the prerogatives of Congress and the privacy of its members. At the same time, we have a solemn responsibility to investigate fully all of these facts and circumstances.”
He also noted the committee planned to ask questions about Perry to Jeffrey Clark, who Trump mulled installing as acting attorney general after the two were introduced by Perry so that the DOJ official could forward the president's election fraud claims.
“When Mr. Clark decided to invoke his 5th Amendment rights, he understood that we planned to pose questions addressing his interactions with you, among a host of other topics,” Thompson wrote.
If the committee were to subpoena Perry, Robbins said the speech and debate clause — which protects members of Congress for actions taken in the course of their work — would be of little assistance.
“I'm unaware of any insurrection support privilege,” Robbins said, adding that while people resisting subpoenas are throwing “everything but the Nina, the Pinta, and the Santa Maria” to dodge them, they are more likely to run out the clock with court challenges than succeed in them.
“So will he, if this is what comes to pass, challenge it? Yes. Will he lose? Yes,” he said.
The committee Tuesday also noted that Trump’s efforts to block it from receiving information have been unsuccessful.
“Representative Perry has information directly relevant to our investigation. While he says that he respects the Constitution and Rule of Law, he fails to note that multiple federal courts, acting pursuant to Article 3 of our Constitution, have already rejected the former President’s claims that the committee lacks an appropriate legislative purpose,” a spokesman for the committee said.
So the decision on whether to issue a subpoena could largely boil down to how it may impact the committee and the future for House Democrats.
But Eggelston cautioned investigators from dwelling too much on the potential repercussions, including whether Republicans may do something similar if they take the House.
“The thing I think that both parties always think about when they're in power is also the flip side, which is, are we holding off and not using a power that we’re pretty sure our opponents are going to use once they get into office? They might be thinking, ‘Republicans are going to do it anyway, so we might as well get the benefit while we’re in power,’” he said.
“I think that in some weird way you can’t war game that. The only thing you can do as a committee is think about the importance of the information to the investigation. If you war game that ‘if we do it, they’re more apt to do it to us if they win in a year’ – it's just too easy to argue both sides of that. You can't really come to a conclusion.”
Harper Neidig contributed.