The decision to subpoena House GOP Leader Kevin McCarthy and other sitting GOP lawmakers by the House select committee investigating the Jan. 6 Capitol attack marked a sharp escalation in the panel’s inquiry – and the potential setting of a new modern precedent in the House.
While congressional ethics committee empowered to investigate misconduct have subpoenaed sitting lawmakers, there are few modern instances of other committees issuing subpoenas to members of the body, Irv Nathan, the former House counsel during Speaker Nancy Pelosi’s first two terms leading the chamber, told ABC News.
“It’s unprecedented, but it’s certainly within their authority,” Nathan said of the Jan. 6 committee.
“The crucial matter is what the subpoenas are for,” Charles Tiefer, another former House counsel and law professor at the University of Baltimore School of Law, told ABC News. “I don't really see why the Justice Department can accumulate evidence about Jan. 6 but the House cannot.”
Committee members argued that McCarthy, Reps. Jim Jordan of Ohio, Andy Biggs of Arizona, Scott Perry of Pennsylvania and Mo Brooks of Alabama all had information that could help the committee’s investigation into the Capitol attack and efforts by former President Donald Trump to overturn the results of the last election.
McCarthy, who is likely to become speaker of the House should Republicans flip the chamber next year, told reporters Thursday that he hadn’t seen the subpoena, and had no comment on Friday.
He was in contact with Trump during the riot, and recalled to another member that Trump told him that “these people are more upset than you are” about the election results, Rep. Jaime Herrera Beutler, R-Washington, revealed last year.
The New York Times also reported that in the days after the attack, McCarthy told other Republican leaders he would urge Trump to resign, which he later claimed was a hypothetical comment. The California Republican initially criticized Trump but has since embraced him as Republicans work to regain the House.
Jordan, Perry and Brooks were involved in discussions with Trump and some advisers about how to contest the certification of election results on Jan. 6, and involved in the weekslong legal campaign to challenge the results in key states.
Jordan and Perry were also in constant communication with former White House chief of staff Mark Meadows, who turned over text messages to the committee before refusing to cooperate.
Perry was also involved in an effort to replace the leader of the Justice Department after the 2020 election with another attorney who would more aggressively investigate unsubstantiated claims of voter fraud pushed by Trump, attorney Rudy Giuliani and other senior Republicans.
For months, the committee had debated whether to subpoena the sitting members after voluntarily requesting their cooperation, mindful of the practical, political and legal hurdles the effort to compel their testimony would face.
“It was not a decision that was taken lightly,” committee vice chair Liz Cheney, R-Wyoming, told reporters on Thursday. “It’s a reflection of how important and serious the investigation is and how grave the attack on the Capitol was.”
“It's not a game, this is not parcheesi, this is not checkers,” Rep. Jamie Raskin, D-Maryland, a member of the committee and a constitutional scholar, said Thursday. “This is a serious investigation into an attack on the government of the United States and we're going to proceed the way we have been proceeding.”
Still, with all five Republicans signaling plans to ignore or reject the subpoenas, it’s not clear whether Democrats can effectively force them to cooperate with the committee or secure their testimony before the panel releases a report on its investigation in the fall, or the end of the year.
Several committee members declined to say what steps the committee would take to respond to noncompliance.
Nathan told ABC News that the “speech and debate” clause of the U.S. Constitution protects members of Congress from being taken to court over their official duties – since it states that members "shall not be questioned in any other place" besides the House and the Senate.
That could make a referral to the Justice Department unlikely, Tiefer said.
But the House could decide to hold McCarthy and the other members in contempt of Congress in a simple majority vote of the chamber, after voting in committee to do so.
“While I don't think they can go to court to enforcement, they have internal mechanisms to enforce it,” Nathan said.
“The most draconian would be proposing they be expelled from Congress, but obviously you need two thirds [of the House] for that so that's not going to happen,” he added. “But there are a lot of options along the way for proportionate sanctions.”
Republicans could also seek reprisals against Democrats in their investigations next year if they retake the House. Already, McCarthy has threatened to kick certain Democrats off key committees.
Rep. Adam Schiff, D-California, the chairman of the House Intelligence Committee and member of the Jan. 6 panel who Republicans have pledged to remove from the intelligence committee over comments made during Trump’s first impeachment, dismissed any potential Republican reprisals.
“Frankly, I'm much more concerned that they would follow through with what McCarthy tried to do when he lacked the power, and that is overturn the election,” he said, pointing to McCarthy’s vote against certifying the election results from key states on Jan. 6, and suggesting he would’ve done the same if leading the House.
ABC News’ Katherine Faulders, Ali Pecorin and Mariam Khan contributed to this report.