January 6 Committee: New attack on panel by Trump allies is a long shot

A consistent line in many of the cases are allegations that the selected The composition of the committee – where the Republican leadership of the House did not elect the GOP members of the panel – makes it a flawed endeavor and that its power to demand records should be invalidated.

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

Several witnesses seeking to block the committee’s January 6 subpoena are former 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 people like “Stop the Steal” organizer Ali Alexander, who was involved in events that preceded the US Capitol riot.

Several persons suing the committee have already disclosed some of the information it has sought, but want to block subpoenas issued by the committee to their telephone companies for certain telephone data.

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It is not clear how much impact the lawsuits could have on the committee’s investigation, given the dozens of deposits the committee has made and the thousands of documents it has obtained. But with the committee expected to have only a year left to carry out its work, as Republicans are likely to repeat Parliament and its inquiry, any delay caused by the trial could be costly.

The nine lawsuits that have been filed against the committee in recent weeks make a number of allegations – some claiming violations of the Constitution and others claiming the lawsuits are in violation of laws protecting privacy for electronic communications.

But the accusations that attack the composition of the committee are where lawyers representing right-wing witnesses have put their greatest hope.

Several of the witnesses claim that the subpoenas are invalid because of who sits on the committee and the trial members were elected. They point to the language used in the resolution that set up the committee, which instructs Parliament’s speeches to elect five out of the committee’s 13 nominated members after “consultation with the minority leader.”

When House Minority Leader Kevin McCarthy offered a group of potential GOP members, which included Republicans who supported Trump’s attempt to overthrow the election, House Speaker Nancy Pelosi dismissed the recommendations. Democrats elected instead of two Republicans – reps. Liz Cheney and Adam Kinzinger – who had been candid in their criticism of Trump’s role in encouraging the riots.

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The claim is “unique, according to Michael Stern, a former senior adviser to Parliament, who told CNN that he was not aware of Parliament’s precedent that would cover it. The question to the courts in these cases may be what Parliament 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 very language used in the decision, which only requires “consultation” with the minority leader before the committee members are elected.

“As for the decision to set up the committee, it only promised ‘consultation’ with the minority. It did not promise the special membership of the minority,” said Charles Tiefer, a law professor at the University of Baltimore School of Law and a former deputy general in Parliament. house adviser.

Nor to help the witnesses’ case, Stern said, is that the house has since approved contempt decisions stemming from the investigation. The House would probably “not have certified a contempt if it thought the committee was not authorized to act in accordance with the house’s rules,” Stern said.

The Meadows complaint cites a 1963 Supreme Court ruling that overturned the conviction of a person who was prosecuted for failing to appear for testimony before the House Committee on Un-American Activities. The judges found that the committee had broken its own rules for how it went about seeking the individual testimony.

“So there could very well be – and I think there is – a problem with the composition of the committee, as it does not have a complete list of Republican members, and there is a question of how the Republican members were appointed.” said Stanley Brand, a former attorney general and attorney for former Trump assistant Dan Scavino. (Scavino was summoned by the House and has not yet testified, but has not sued the committee either.)

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

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

Alexander filed his lawsuit on Dec. 17, challenging the lawsuit for his phone records after sitting in an eight-hour depository and handing over thousands of records – including 1,500 phone messages – to investigators. And his lawyers walked away from his deposition on suspicion that the House committee had summoned bank records from witnesses – a suspicion that was born to be true.
Four other people who helped staff at the January 6 demonstration in the White House announced their cooperation with the House investigation in their joint lawsuit, which challenged subpoenas for their phone records. They had objected to certain committee inquiries, particularly about funding and convention planning, as they realized the information had been provided by other convention witnesses, the lawsuit states.

Cases in which witnesses sue telephone companies or other third parties to challenge committee summonses in their archives could, according to Brand, provide the best opportunity for witnesses to test their legal claims.

The DC Circuit precedent, according to Brand, will be a problem for witnesses seeking review of subpoenas issued to themselves if the Department of Justice does not prosecute them for contempt or Congress has not 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 filed to enforce the lawsuit,” Brand said. “So one can not get judicial review prior to enforcement, at least as the law is now.”

But the courts may still be less inclined to guess how Parliament interprets the decision than they would be if the witnesses faced prosecution.

“I think the courts will probably, especially in this context, relate to Parliament’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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