Some Subpoena Realism

and the lack of fine print to save McCarthy et al.

The best political fixes are found in lawyerly fine print.

When an investigation was begun into Russian Interference in the 2016 Election, the DOJ limited its special counsel, former FBI Director Robert Mueller, to Russian goverment officials not to their puppet masters — the oligarchy that controlls Putin and the Russian Federation.

Floridan Republicans decided that they were not pleased that corporate behemoth Disney was showing signs of a social conscience (after all corporations are people, aren’t they) and decided to punish them by removing its protected legal status. And after a few weeks of upsettedness on the Left and blowback for the Right, the corporate lawyers for Disney said “read the fine print”, i.e. if we don’t have our special administrative district (which allows DisneyWorld to have and pay for its own police, fire, etc.), you must pay our bond off up front — the price tag for that is $1 billion.

The opportunities for a political fix in the January 6th Insurrection have largely come and gone. The House GOP leadership could have allowed the impeachment vote to be a “vote of conscience”¹, the Senate could have convicted Trump, House Republicans could have agreed to an independent commission to investigate the attack, and would-be Speaker Kevin McCarthy could have been more politically circumspect in appointing GOP members to the Select Committe to Investigate the January 6th Attack on the Capitol.

The Select Committee, apparently after weeks of hand wringing, finally subpoenaed 5 members of Congress regarding the event of January 6, 2021 and the days and weeks preceding them. Those members are Minority Leader Kevin McCarthy (R-CA), Andy Biggs (R-AZ), Mo Brooks (R-AL), Scott Perry (R-PA), and Jim Jordan R-PA).

Setting aside the fact that all five were given opportunities to speak to the Committee voluntarily, the stage is now set for a series of political and legal problems.

Some realist observations.

The argument that the Committee lacks constitutional or legal authority is nonsensical plus the Supreme Court has more or less shuttered that argument.

Much of the testimony being sought is largely already known and is documented by other sources, so the point of fighting the subpoena is probably a 5th Amendment problem. Admitting to indictable conduct behind closed doors is a lot easier than having one’s guilt be broadcast in prime time.

The non-lawyer adage “If you did nothing wrong, you should not be afraid of testifying” and frequent comparisons to Hillary Clinton’s testimony (given voluntarily) to the Select Committee investigating the Benghazi attack will make political spin outside of the FoxNews/right wing media vortex impossible.

Brooks, Biggs, and Jordan are attorneys and refusing to abide by a properly served subpoena could implicate them in state bar disciplinary proceedings. Mo Brooks has hinted at his willingness to testify², but if he testifies he will put his 4 colleagues, especially Biggs and Jordan, in political and legal jeopardy.

The Select Committee is holding public hearings in June — basically in 3 or 4 weeks.

The political actors in the January 6th Insurrection have had 16 months to build a plausible narrative to defend themselves. Instead they have followed Trump’s delusional “Big Lie” which has no believers outside of the MAGA universe.

Of course, the GOP could continue to call it a partisan witchhunt. Unfortunately, the recorded words of Kevin McCarthy have already undercut the effectiveness of that approach.

1. A “vote of conscience” is an intra-party promise of no retribution for those who cross party line in a vote. Speaker Pelosi made both Impeachment votes on Donald Trump “votes of conscience”.

2. Mo Brooks and the Art of the Deal