The McCarthy Letter
or the "You expect to become Speaker by flouting congressional authority" conundrum
“Greetings”
Letter to young males advising they had been drafted into the military started with that word. There weren’t any outs to the letter itself — it was an order to report to the local draft board and to submit to a medical examination. Without a medical, psychiatric, or dependency exemption, you were likely to be 1-A. Oh, there were some other outs too, but the burden was always on the draftee to prove the exemption.
If you failed to comply, you were a draft dodger (technically a draft evader). Some chose a more defensible path to avoiding the draft — e.g., going to grad school or marrying a pregnant girl (or just knocking up a current girlfriend). A fungible excuse that got out of the draft without the stigma of being termed a draft dodger was much preferred.
A handful of potential draftees, however, chose the most difficult path — denying the draft’s legality.
Three Republican House members have opted to evade subpoenas issued by the Select Committee to Investigate the January 6th Attack on the Capitol by choosing a problematic legal argument - the Committee is illegal.
Okay, that’s a bit unfair. Rep. Scott Perry (R-PA) claims the Committee is illegitimate and bizarrely also claims it’s a violation of House Rules (a quick reading of the Constitution and case law debunks that part of his argument). In denying the Committee’s requestion for an interview, Perry also threw in a full volley of unbridled Trumpism,
"I decline this entity’s request and will continue to fight the failures of the radical Left who desperately seek distraction from their abject failures of crushing inflation, a humiliating surrender in Afghanistan, and the horrendous crisis they created at our border."
Rep. Jim Jordan (R-OH) was less Trumpian than Perry, but he took a far more troubling legal position: Congress has no power to investigate anything. Jordan’s logic is that the oversight and investigatory powers of Congress are non-existent — everything Congress does must have a legislative purpose. Jim Jordan seems to be wilfully ignorant of what the House and Senate Intelligence Committees do, and by his logic, he would have opposed the Whitewater Investigation in the 1990s and the Benghazi hearings in the 2010s — except that the hypocrite was a member of that Select Investigatory Committee.
Jordan’s political logic is that there must be a legislative purpose to Committee actions is nonsensical. The “necessary and proper” clause of Article I Section 8 of the Constitution eviscerates that notion rather quickly.
But even so, having a legislative purpose is rather easy to overcome if one wants to be persnickety about it. Whitewater - tightening governmental ethics laws (and tax law). Benghazi - improving embassy security. Investigating Trump’s taxes - closing tax loopholes. The January 6th Committee - improving Capitol security, criminalizing domestic terrorism, and making changes in presidential election law come to mind immediately. Easy-peasy as the Philosopher Parr said more than once.
And then there’s Kevin McCarthy (R-CA), the House Minority Leader, and his objections.
His primary claim is that he was denied the right to name GOP Members to the Committee. Actually, Speaker Pelosi only objected to two of his selections — Jim Banks of Indiana and Jim Jordan of Ohio. Her objection to Banks was that he had publicly stated his intention to sabotage the hearings. Her objection to Jordan was that he was likely to be a witness as texts, phones calls, and documents tied him into the insurrection. It seems clear, based up the request of the Select Committee to interview Rep. Perry, that he too is intrinsically involved.
While McCarthy may not be indictable for his conduct, his reactions to the Insurrection immediately afterwards were laudable in that he knew Trump bore responsibility. Furthermore, his reaction to what was a brazen attempt to overthrow the government was a frank admission- there was no basis to overturn Biden’s election.
The Select Committee’s letter to him was blunt and as terse as possible in a six page letter as to why it wanted to interview McCarthy12.
McCarthy’s turnaround from his original position since then makes perfect sense. The GOP caucus controls its leadership. The “chaos caucus”, as former Speaker John Boehner termed them, has its own powerbase and has a conspicuous tendency to hang Republicans who don’t toe its Far Right dogmatism3.
That powerbase prevented McCarthy, and more sensible members of the GOP caucus, from pursuing the most pragmatic and least dangerous path — having an independent commission. Congress is not required to do anything with a commission report other than receive it. Investigatory committees, on the other hand, assert governmental oversight for their jurisdictional authority and often request that criminal charges be made when they find violations of federal law.
But the problem with McCarthy’s argument goes well beyond Banks and Jordan. The GOP is now taking the position that the House cannot assert its authority over individual members through its subpoena power and more odiously that the “Speech and Debate” clause serves as immunity from criminal liability. Case law4 and common sense nothwithstanding, Congress is a plural body that does not cease to exist due to the deaths, resignations, or expulsions of individual members, and its power to make and enforce its own rules does not require unanimity to be valid.
There is not a dimes worth of difference between the Select Committee to Investigate the January 6th Attack on the Capitol and the Select Committee on Events Surrounding the 2012 Terrorist Attack in Benghazi except that sitting members of Congress weren’t in Libya aiding and abetting terrorists and violating federal law.
And McCarthy knows it.
Cut, paste, and read. https://january6th.house.gov/sites/democrats.january6th.house.gov/files/2022-1-12.BGT%20Letter%20to%20McCarthy.pdf
A fair reading of the above letter appears to be an attempt to fill out more of the chronology of events by interviewing McCarthy. It is clear also that the chronology will likely imperil Donald Trump.
Boehner was criticized by Republican in his state for acknowledging President Obama was born in the U.S. According to his book, “On the House”, he received angry calls and letters about saying so for weeks for abandoning the “birther” argument.
U.S. v. Brewster, 401 U.S. 501 (1971) and Gravel v. U.S., 408 U.S. 606 (1972)