Congress' Jan. 6 investigators face an inevitable reckoning with their GOP colleagues

These Republicans linked Trump to willing Justice Department partners who could fuel fraudulent claims. They met with Trump to give counsel. They spoke by phone with Trump on Jan. 6, as Trump watched his Stop the Steal rally transform into a violent riot which overtook the Capitol.
Veteran witnesses to high-profile congressional inquiries claim that the seven Democrats and two Republicans of the committee will soon recognize the importance of direct testimony by their GOP counterparts.

The committee will need to target certain testimony, documents, and other evidence to find the truth. This is according to Norm Eisen, a Brookings Institution senior fellow who advised the House Judiciary Committee in the wake of the Trump impeachment. They are central.

This reality was made more clear this week when Dick Durbin, the Senate Judiciary Chair (D-Ill.), asked the House for an investigation into Scott Perry (R. Pa.) who helped Trump push the Justice Department to reverse the election. Senate Judiciary Democrats discovered that Perry was a crucial link between Trump and a Justice Department official willing to help the former president in his quest to reverse the election.

The report also mentioned Rep. Jim Jordans' (R-Ohio), contacts with the White House during this time period.

Rep. Jim Jordan takes part in an Oxon Hill panel, Md. 2018 John Shinkle/POLITICO

Jan. 6 also issued a subpoena to Ali Alexander, the leader and organizer of the pro-Trump Stop the Steal group. Alexander has claimed that he was involved in the pre-insurrection rally along with several GOP lawmakers including Reps. Paul Gosar, Mo Brooks (Ala.), and Andy Biggs. (Biggs, Brooks and Gosar have denied any connection.

These moves are in line with the panel's early request to telecommunications companies for records of multiple lawmakers, including Kevin McCarthy, House GOP leader. McCarthy spoke directly to Trump on Jan. 6 when a mob broke into the Capitol. This was a warning shot. It stated that some panel members would not hesitate to take the unusual step of targeting their fellow colleagues.

House Republicans close to Trump have criticized the Jan. 6-created committee and avoided questions about cooperating. POLITICO reached out to many of these lawmakers, and was met with a mixture of shrugs, non-answers, and outright refusals.

When Jordan was asked about possible cooperation with the committee, Jordan repeatedly stated that he has nothing to hide. Rep. Greg Pence, R-Ind. Rep. Greg Pence (R-Ind. Gosar said he would not be cooperating with the panel because the Supreme Court has said no. His office also declined to comment.

McCarthy has, however, been a dancer on the topic of cooperation at select panels during various press conferences this past year while trying to portray its mission and members as too political. He stated that he was not concerned about being asked for his testimony in May. He stated that details of his telephone conversation with Trump were public in July. He also refused to say whether he would co-operate, but he said that he hadn't been subpoenaed.

Refusal to cooperate by a lawmaker will place the committee in a difficult position to decide whether it should unload its legal arsenal, which includes subpoenas and criminal contempt referrals to internal House policies to compel compliance.

Eisen stated that the committee's strategy to build a case to ask their colleagues for testimony is crucial because it can help legal challenges stand up. Eisen suggested that investigators target lawmakers who were in direct contact with key figures in the events of Jan. 6. He also recommended that the committee have evidence of these episodes.

Eisen stated that it is strategic to start with the foundation because you know that each one of these document requests, even testimonial requests, will be highly contested. The lawyers representing these potentially guilty members will certainly be scrutinizing any legal arguments.

Any attempt to force legislators to testify or to turn over documents will lead to a clash over the House's authority to police its members. Experts in legal law say that the House cannot subpoena other lawmakers unless it is investigating the Ethics Committee.

The 1990s saw the Supreme Court uphold a Senate Ethics Committee subpoena to search the personal files of Sen. Robert Packwood (R.Ore.) who was accused of sexual harassment. However, there has been no similar attempt to investigate outside of congressional ethics panels.

Many legislators who have faced legal difficulties over the years have turned towards the protection of Constitutions speech and debate clauses. This protects them from being sued and holds them legally responsible for any actions they take as an official. Experts say that this legal protection is intended to protect against the intrusion of other branches of government, and not just from within the House.

According to a former member from the House counsels office, these are not constitutional issues. He spoke openly under anonymity. Speech and Debate are the most common privileges we think about, but they also apply to inter-branch interference in the affairs of co-equal branches of government. It is intra-branch in this instance, so those privileges won't apply.

Republicans are largely trying to discredit the probe after Speaker Nancy Pelosi rejected two McCarthys nominees for the committee, including Jordan. This prompted the GOP leader and GOP leader to withdraw his selections from the Jan. 6 probe.

Reps. Liz Cheney from Wyoming and Adam Kinzinger from Illinois are the two Republicans who serve on this panel. However, the larger GOP conference dismissed their participation due to their appointment by House Democrats. Also, because they were outspoken Trump critics after voting to impeach him following the Jan.6 attack, both of them have been publicly critical of Trump. Some Capitol Hill Republicans have privately questioned why a GOP member would consent to testify before a Jan. 6 panel, without McCarthy's counterbalance.

As Rep. Bennie Thompson, Chair, listens to Rep. Liz Cheney ask D.C. Metropolitan Police Department Officer Michael Fanone questions before the House Select Committee that is investigating the Jan. 6 attack. Bill O'Leary/Getty Images

Jordan, the House Judiciary Committee's top Republican, is particularly interested in the question of whether or not to engage with the selected panel. Jordan was a prominent conservative investigator during the investigation of allegations of misconduct at the Justice Department and FBI during the 2016 presidential campaign. House Republicans defended the power to subpoena executive-branch officials for their testimony.

Jordan and his colleagues now find themselves in unfamiliar territory, with the possibility of being subpoenaed by their branch. Republicans warn Democrats that if Jan. 6's panel targets other lawmakers, a GOP majority would be ready to subpoena a few prominent liberals who have faced behavioral questions of their very own.