Why the new legal attack from Trump allies against the House January 6 committee is a long shot

By CNN

Published December 30, 2021 1:26 PM

By Tierney Sneed and Katelyn Polantz, CNN

The flurry of lawsuits filed in recent weeks trying to stop the House January 6 committee’s subpoenas are revealing, in many ways, the opposite: That the House has been largely successful at sweeping up documents for the probe and interviewing dozens of major witnesses.

A throughline in many of the cases are allegations that the select committee’s makeup — where House Republican leadership did not choose the panel’s GOP members — make it a flawed endeavor from the start and that its power to demand records should be invalidated.

That theory has not yet been tested in court, but legal experts tell CNN the claim is a Hail Mary at best, especially given the context in which the witnesses are trying to bring it.

Several witnesses seeking to block the January 6 committee subpoenas are ex-aides to former President Donald Trump, including former White House chief of staff Mark Meadows and former national security adviser Michael Flynn. Other challengers are individuals like “Stop the Steal” organizer Ali Alexander, who were involved in events that preceded the US Capitol riot.

Several people suing the committee have already handed over some of the information it has sought, but want to block subpoenas the committee has issued to their phone companies for certain phone data.

It’s not clear how big an impact the lawsuits could have on the committee’s investigation, given the dozens of depositions the committee has conducted and the thousands of documents it has obtained. But with the committee expected to have only a year left to do its work, as Republicans are likely to retake the House and its investigation, any delay caused by the court proceedings could prove costly.

The nine lawsuits that have been brought against the committee in recent weeks make a variety of claims — some alleging constitutional violations and others claiming the subpoenas run afoul of laws protecting the privacy of electronic communications.

But the allegations attacking the committee’s composition are where lawyers representing right-wing witnesses have placed their highest hopes.

Several of the witnesses allege that the subpoenas are invalid because of who sits on the committee and the process members were chosen. They point to the language in the resolution creating the committee that instructs the House speaker chose five out of the committee’s 13 designated members after “consultation with the minority leader.”

When House Minority Leader Kevin McCarthy offered a group of potential GOP members that included Republicans who supported Trump’s bid to overturn the election, House Speaker Nancy Pelosi blew off the recommendations. Democrats selected instead two Republicans — Reps. Liz Cheney and Adam Kinzinger — who had been outspoken in their criticism of Trump’s role in encouraging the riot.

The claim is “unique, according to Michael Stern, a former senior counsel for the House, who told CNN he was not aware of House precedent that would cover it. The question for the courts in these cases may be what the House intended.

“Common sense,” Stern said, is that the “House probably did not intend that the minority could block the very existence of the committee by virtue of simply refusing to cooperate.”

The actual language in the resolution that requires only “consultation” with the minority leader before the committee members are chosen.

“As far as the resolution creating the committee, it only promised ‘consultation’ with the minority. It did not promise the minority particular membership,” said Charles Tiefer, a legislative professor at University of Baltimore School of Law and a former House deputy general counsel of the House.

Also not helping the witnesses’ case, Stern said, is that the House has since okayed contempt resolutions stemming from the investigation. The House presumably “would have not certified a contempt if it thought the committee wasn’t authorized to act under House rules,” Stern said.

The Meadows complaint cites a 1963 Supreme Court decision that threw out the conviction of an individual who was prosecuted for not showing up for testimony in front of House Committee on Un-American Activities. The justices found that the committee had broken its own rules in how it went about seeking the individual’s testimony.

“So there could well be — and I believe there is — an issue with the composition of the of the committee, since it does not have a full slate of Republican members and there’s some issue about how the Republican members were appointed,” said Stanley Brand, a former House general counsel and a lawyer for former Trump aide Dan Scavino. (Scavino was subpoenaed by the House and has not yet testified, but also hasn’t sued the committee.)

The onslaught of lawsuits has not forced emergency court action to block the committee’s subpoenas. Judges have already rejected two attempts of Trump acolytes, Flynn and Trump spokesperson Taylor Budowich, to get a court to intervene quickly.

Furthermore, several of the committee’s legal challengers have conceded that they have already provided the committee with a great deal of information, while their lawsuits indicate that the committee has been able to obtain much of what it has sought.

Alexander brought his December 17 lawsuit challenging the subpoena for his phone records after sitting for an eight-hour deposition and turning over thousands of records — including 1,500 phone messages — to investigators. And his lawyers walked away from his deposition suspecting the House Committee was subpoenaing bank records of witnesses — a suspicion that was born out to be true.

Four other individuals who helped staff the January 6 rally by the White House touted their cooperation with the House investigation in their joint lawsuit challenging subpoenas for their phone records. They had dropped objections to certain committee inquiries, especially about financing and rally planning, once they realized the information had been provided by other rally witnesses, the lawsuit said.

Cases where witnesses are suing phone companies or other third parties to challenge committee subpoenas of their records could provide the best opportunity for the witnesses to test their legal claims, according to Brand.

DC Circuit precedent will be an issue for witnesses seeking review of subpoenas issued to themselves, according to Brand, if the Justice Department isn’t prosecuting them for contempt or Congress hasn’t taken civil action to enforce the subpoenas.

“The way you challenge a committee rule or procedure is either through the contempt process or a lawsuit that’s filed to enforce the subpoena,” Brand said. “So you can’t get pre-enforcement judicial review, at least as the law stands now.”

But courts may still be less inclined to second-guess how the House is interpreting the resolution than they would be if the witnesses were facing criminal prosecution.

“I think the courts are likely to, particularly in this context, to defer to the House’s interpretations of its rules and not be quite as strict as they have been in other cases involving criminal convictions,” Stern said.

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