At the heart of Trump allies’ complaints is Pelosi’s decision to dismiss two of the five House Minority Leader Kevin McCarthy appointees to the committee — Representatives Jim Jordan (R-Ohio) and Jim Banks (R-India) — whom Pelosi claimed were. Too intertwined with Trump to be credible investigators. McCarthy then withdrew three others in protest and has since boycotted the commission.
Trump allies facing subpoenas from the committee have cited the lack of GOP-appointed members as evidence that the committee is operating improperly and have repeatedly highlighted this in court filings. They say the House rules on subpoenas and testimony require consultation between majority and minority members, which is impossible for a committee that does not have official GOP-appointed members—the committee’s two Republicans, Liz Cheney (R-Wu) and Adam Kinzinger. (R-Ill.), by Pelosi.
But Leiter noted that the resolution creating the January 6 commission explicitly granted Pelosi the power to appoint all of its members. These same rules contemplate the possibility of vacancies and do not require closing the committee simply because it does not have a full list of members.
Perhaps most important, Leiter argues, Republicans made no formal objections when the House debated and voted on two key actions by the January 6 select committee: resolutions that hold Trump advisers Mark Meadows and Steve Bannon in criminal contempt for Congress. Leiter noted that Republicans could have raised formal “points of order” challenging the select committee’s validity at the time, but they did not and both resolutions passed—with little Republican support.
“[I]”It is inconceivable that the entire House of Representatives would adopt the product of an invalid body,” the letter said.
The roots of the House’s argument lie in that the long-established Basic Courts give overwhelming respect to Congress for creating and interpreting its own rules. Courts are reluctant to tell lawmakers how to monitor their internal affairs as long as there are no clear violations of the law or the constitution.
Like the Katrina Select Committee — and a subsequent Republican-led committee investigating the deadly attack on a US consulate in Benghazi — the January 6 select committee asked Pelosi to “consult” McCarthy before setting appointments. The procedures do not specify how intense such consultations should be or whether Democrats should listen to McCarthy’s input.
“Here, there can be no serious disagreement over it [the resolution] Not Followed: Minority Leader Consulted.” “The Minority Leader has made several proposals to the Speaker regarding the minority party members to serve on the Select Committee, and the Speaker has announced her intention to appoint three of the five minority party members recommended by the Minority Leader. That the Chairman…made different selections of two members, and that the minority leader subsequently withdrew his recommendations, does not make the Select Committee improperly a problem, nor invalidate any of its actions.”
The House’s official argument came just hours after McCarthy rejected the committee’s request to testify in private about his dealings with Trump on and after January 6th. illegal.”
The ruling in the Bowdwich case is set to be the first to be reckoned with to challenge the authority of the Jan. 6 commission, and could have repercussions for similar lawsuits brought by Trump allies such as former national security adviser Michael Flynn, attorney John Eastman and pro-Trump broadcaster Alex. Jones and others resist the Select Committee’s subpoenas for their records.
In his file, Letter notes that Budowich has already turned over portions of his financial records that show he played a role in financing the January 6 rally that preceded the attack on the Capitol. Leiter said the recall of his bank records was the next logical step in the investigation.
“Documents collected from JPMorgan Chase will also allow the Select Committee to verify information already given to it by Budowich and determine whether further investigation is needed,” he argues.
More importantly, Leiter says, suing the commission to force it to return the documents is prohibited by the Constitution, which the courts have said limits the judiciary’s ability to compel Congress to return materials in its possession.
Bowdwich also challenged the “legislative purpose” of the January 6 commission, claiming that the subpoena for his records exceeded the commission’s mandate to investigate the attack on the Capitol. But Leiter noted that the commission provided detailed explanations for its mission to craft policies aimed at preventing any future threat to the transfer of power — and those goals were confirmed last month by a federal appeals court in a separate lawsuit brought by Trump himself.
The letter was inspired by the precedents of House Republicans in another way, too: efforts by former House Intelligence Committee Chairman Devin Nunes (R-Calif.) to obtain the financial records of Fusion GPS, the company the Clinton campaign hired to produce opposition research. On Trump in 2016.
At the time, Fusion challenged Nunes’ efforts in court, arguing that forcing him to turn over transaction records would infringe First Amendment rights. Budowich made similar arguments to protect his company Conservative Strategies from having to disclose client records.
But a federal judge rejected Fusion’s argument, holding that business transactions do not have the same First Amendment protections that political discourse and associations do.
“Similarly, here, although the work of Budowich’s clients may include behavior that is protected under the First Amendment,” Letter said, “disclosure that he and his company assisted those clients in this work is not.”
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