January 6 investigation weighs major escalation: subpoena of colleagues

In his statement later that day, Mr McCarthy accused the committee of abuse of power, complaining that he ‘wants to interview me about public statements that have been shared with the world and unrelated private conversations with the violence that unfolded at the Capitol.”

“I have nothing more to add,” he said.

It is extraordinarily rare for lawmakers to face subpoenas relating to their official activities, but the law presents no clear barriers to doing so, several legal experts said.

The Constitution’s so-called Speech or Debate Clause, intended to protect the independence of the Legislature, states that Senators and Representatives “shall not be questioned in any other place” about any speech or debate in the either House, and has been broadly construed to cover all legislative actions, not just words. At first glance, however, this clause is limited to questioning them in “other” places, such as courtrooms.

“The speech or debate clause deals with being questioned in another place, and the House says here that ‘the facts are within the control of one of our own, and we need him to share them with us’ said Michael Davidson, a former longtime Senate legal adviser under bipartisan majorities.

There is also precedent for the House subpoenaing its own members in a restricted context. The House Ethics Committee, which is responsible for investigating allegations of member misconduct, has the power under the rules of the room to subpoena members for testimony or documents, and members are required to comply with them.

The committee rarely discloses its work, so it is unclear how often it issued such subpoenas; lawmakers facing ethics inquiries often voluntarily cooperate or resign. Yet there is at least one public example of a lawmaker challenging a Senate Ethics Committee subpoena in court — and losing.

In 1993, Senator Bob Packwood, Republican of Oregon, was under investigation over allegations that he sexually harassed numerous female staff members, and the ethics committee ordered him to hand over certain pages of his personal diary. He hesitated, arguing that the request was too broad and violated his rights.

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