House Minority Leader Kevin McCarthy’s threat that Republicans “will not forget” if telecommunications companies comply with lawful requests for information from the select committee investigating Jan. 6 should bring immediate scrutiny from ethics and legal authorities. It calls to mind a movie where a gangster walks into a business and says “Gee, nice telecom company you have here. It would be a real shame if something happened to it.” It may also be a sign that the committee is getting close to uncomfortable evidence that the minority leader wants to hide from the American people.
The House Ethics Committee is well positioned to probe McCarthy’s behavior. Clause 1 of Rule XXIII of the House Rules requires members to “reflect creditably on the House.” Little can be more discreditable than the minority leader of the House openly threatening companies unless they hide evidence from a legitimate investigation — one that may implicate him and some of his Republican colleagues.
The Ethics Committee for example has invoked this provision against members for making statements that impugned the reputation of the House, making false statements in connection with an investigation and accepting gifts from persons with an interest in legislation pending before the House. In this case, McCarthy is going further and coercing something evidently of great value to him: noncooperation.
The statement made by McCarthy may also run afoul of federal criminal law. For example, 18 U.S.C. Section 1505 provides that anyone who “obstructs … the due and proper exercise of the power of inquiry … by either House, or any committee of either House” is subject to criminal liability. Threatening companies if they cooperate with a legitimate request by a duly authorized House select committee certainly seems to raise issues under that and the other obstruction of justice statutes that also apply to interference with a congressional investigation.
Under normal circumstances, a person who made this kind of threat might well find themselves under scrutiny by the Department of Justice. There is a complication here, however. The Constitution’s speech and debate clause provides members of Congress with immunity for “any speech or debate in either House.” It is an open question whether a threat of this kind — one made on McCarthy’s official Twitter account — is covered.
That open question just makes the need for an Ethics Committee investigation all the more important. The constitutional issue is part of the assessment that the committee should undertake to decide whether to make a criminal referral, along with looking at whether there might be other evidence of obstruction by McCarthy or his colleagues.
We can assume McCarthy was aware of the ethical and legal risks of his behavior, because he attempted to garb his threat with a fig leaf of legality. His statement claimed that the companies’ compliance would be “in violation of federal law.” However, when pressed by the media, his office did not identify a law that would be violated. That is because there is none.
Indeed, the exact opposite is true. Failure by companies to cooperate with the investigation would be a violation once Congress issues subpoenas. The companies have an affirmative legal duty now to preserve the records for the process that is coming. McCarthy’s claims that lawful compliance is illegal is Orwellian double-speak.
Lest there be any doubt about what is going on here, McCarthy’s right flank was even less careful. On Fox’s Tucker Carlson show, Rep. Marjorie Taylor Greene said the quiet part out loud: “These telecommunications companies, if they go along with this, they will be shut down. And that’s a promise.” Her words not only provide important context. They were uttered entirely outside of Congress, are not covered by speech and debate protection, and should also be investigated by the ethics panel.
In addition to investigating whether ethics violations occurred, the House Ethics Committee has a critical role to play in ascertaining whether a criminal referral is appropriate. Under House Rule XI 3(a)(3), it is authorized to make such a referral. It ought to look into all the facts and circumstances in this case, question McCarthy and others, gather documents and evidence, and decide whether a referral is appropriate. The committee has the responsibility to protect the credibility and integrity of the House from improper conduct. This requires the committee to investigate McCarthy.
Even absent making a criminal referral, the committee has the power to hold McCarthy accountable. The committee may issue a letter of reproval or may recommend to the full House a fine, a reprimand, or other penalties including censure: “Reprimand is appropriate for serious violations, censure is appropriate for more serious violations, and expulsion of a Member … is appropriate for the most serious violations.”
Finally, we should not only focus on what McCarthy has done wrong but also what the select committee investigating the Jan. 6 riot is doing right. This behavior by the minority leader is a signal that the panel is taking the correct steps as it pursues a comprehensive investigation into the unprecedented insurrectionist attack by Americans on the Capitol. The House select committee should go full speed ahead — and so should the House Ethics Committee.
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