In the early aftermath of Jan. 6, House Minority Leader Kevin McCarthy (R-Calif.) backed a congressional investigation into that day’s attack on the U.S. Capitol.
Now he says it would be flat-out illegal for private companies to comply with an investigative committee’s requests for information.
“If these companies comply with the Democrat order to turn over private information, they are in violation of federal law and subject to losing their ability to operate in the United States,” McCarthy said in a Tuesday statement.
This week, the committee asked nearly three dozen internet and telecommunications companies to preserve records or hand over material that might be related to any planning of the Jan. 6 attack, which interrupted the certification of Donald Trump’s loss in the 2020 presidential election.
By saying that compliance with the request would be illegal, McCarthy’s statement implies the request itself could be illegal, though he stopped short of explicitly saying so.
“I think part of the reason he’s not spelling it out is because the claim may have no validity,” said Alexander Reinert, a professor at the Benjamin N. Cardozo School of Law.
It’s not clear what law McCarthy thinks companies might violate. His office did not respond to a request for more details.
Courts have repeatedly said Congress has the constitutional authority to compel information from private parties and executive branch agencies, since lawmakers need to be able to gather facts in order to write laws. The targets of congressional subpoenas sometimes resist by arguing that lawmakers are just playing politics and have no legitimate legislative purpose.
“There could be circumstances in which Congress abuses its authority in ways that undermine or violate the Constitution,” Reinert said. “Absent more information, that doesn’t seem to be the case here.”
The Republican leader’s statement comes as Republicans increasingly cast doubt on the severity of the Capitol riot and lament the imprisonment of the rioters.
And McCarthy himself has evolved a lot on whether Congress should investigate the circumstances surrounding the pro-Trump mob’s siege of the Capitol building. The week after the riot, while debating impeachment, McCarthy supported a formal inquiry as an impeachment alternative.
“I think a fact-finding commission and a censure resolution would be prudent,” he said on the House floor, noting that Trump “bears responsibility” for the attack.
But the week after that, McCarthy recanted, saying Trump actually didn’t provoke the mob. And when Democrats formally introduced legislation to create an independent commission ― modeled on the 9/11 commission, with an even party split ― McCarthy balked, complaining the panel would ignore riots connected to Black Lives Matter protests last year.
With Senate Republicans blocking the commission, House Speaker Nancy Pelosi (D-Calif.) set up a select committee. McCarthy pulled his appointees to the panel after Pelosi rejected two of them. She ultimately named two Republicans of her own choosing.
McCarthy has since resorted to blaming Pelosi for the Capitol’s vulnerability that day, implying she allowed Trump supporters to ransack her own office in order to make herself more powerful. And Rep. Jim Banks (R-Ind.), one of McCarthy’s rejected appointees, has claimed Pelosi “scripted” testimony by police officers who fought Trump’s mob.
Part of the reason Republicans may oppose investigation into the riot is that some of them could be material witnesses. McCarthy, for instance, spoke to Trump on the phone during the attack.
In his latest escalation, McCarthy not only said it would be illegal to cooperate with the committee ― he also threatened to retaliate against any companies that do so.
“If companies still choose to violate federal law, a Republican majority will not forget and will stand with Americans to hold them fully accountable under the law,” he said Tuesday.
A few Democrats have said the Department of Justice ought to investigate McCarthy for obstructing the committee’s investigation.
“His threats are treasonous,” Rep. Bill Pascrell (D-N.J.) said Wednesday. “Moreover, this is cut-and-dried felony obstruction by Kevin McCarthy that the Justice Department would do well to look into.”
Republicans have a strong chance of winning back the House of Representatives next year, meaning McCarthy could become the next speaker.