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OPINION

When it comes to subpoenas, Congress must use its power or lose it

Jan. 6 committee chairman Bennie Thompson must create real consequences for those who flout congressional authority. He can start inside his own chamber by compelling the testimony of minority leader Kevin McCarthy.

Kevin McCarthy accused the Jan. 6 committee of abuse of power, saying it seeks “to interview me about public statements that have been shared with the world ... I have nothing else to add." Certainly, that's not true.JIM WATSON/AFP via Getty Images

The House committee investigating the Jan. 6 insurrection has come to a crucial point in its probe, one that is about more than getting to the bottom of what led to last year’s deadly attack on the US Capitol.

What the panel does next could determine whether a crucial aspect of congressional authority is protected or permanently undermined: the subpoena power. While that decision may be politically fraught — especially in deciding whether to compel the testimony of fellow members of Congress — when it comes to protecting the powers of Congress, there is only one answer: Use it or lose it.

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Congress was already starting from behind. One of the many norms and traditions former president Donald Trump and his administration tried to destroy during his term was the power of Congress to compel the cooperation of witnesses relevant to its investigations. Obstruction became a Republican party virtue, with Trump himself not only refusing to cooperate with congressional or special counsel investigations, but also directing others in his orbit to act accordingly. And for the most part, that strategy worked. Trump obstructed Congress and justice, over and over. And by and large, he got away with it.

Now, Jan. 6 committee chairman Bennie Thompson has a chance to change course, creating real consequences for those who flout congressional authority. He can start inside his own chamber by compelling the testimony of House minority leader Kevin McCarthy.

Thompson’s letter to McCarthy asking him to voluntarily cooperate with the investigation by providing an interview and documents was swiftly followed by a statement from McCarthy stating his refusal.

McCarthy accused the committee of abuse of power, saying it seeks “to interview me about public statements that have been shared with the world, and private conversations not remotely related to the violence that unfolded at the Capitol.

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“I have nothing else to add,” McCarthy said.

Certainly, that isn’t true. As Thompson points out in the letter, McCarthy has admitted in multiple media interviews as well as on the House floor in the days after Jan. 6 that he was in contact with Trump before, during, and after the insurrection. Few witnesses are more crucial to the committee’s work of giving a full accounting of what led up to the riot, as well as the ongoing threat caused by Trump’s continual lies about election fraud.

There are political risks to subpoenaing members of Congress, particularly in the acerbically partisan atmosphere in Washington. Fewer things have energized Republicans, particularly those bent on painting the Jan. 6 probe as a partisan witch hunt, more than the prospect of a fight — particularly a legal one. It has been part of Trump’s playbook for decades, which his acolytes have followed.

Subpoenaing McCarthy or other congressional Republicans who were in contact with Trump and his inner circle on or around Jan. 6 will surely be followed by swiftly filed legal challenges alleging that the panel is stepping beyond its constitutional boundaries.

Those challenges will probably fail in the end. But they will still achieve a key GOP goal: running out the clock until the midterm elections — which McCarthy hopes will return the speaker’s gavel to his hand — and culling favor with Trump. But that isn’t an argument against issuing subpoenas. If anything, it shows that the panel should have issued them sooner.

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Some have warned that subpoenaing fellow members of Congress would open a political Pandora’s Box in a way Democrats will regret when Republicans are in charge of the House and Senate. But that argument, like the similar argument some make about Democrats’ push to end the filibuster for voting rights, has a fatal flaw: There is every reason to believe that Republicans will do so anyway, regardless of what Democrats do now.

But the consequences of failing to assert the full power of the Jan. 6 committee would give a victory to Trump and his supporters at the highest levels of government in their efforts to weaken any institution that dares to hold him responsible for his dereliction of duty. It would prove that obstruction works. Congress will be irretrievably broken.

The United States didn’t have to become a nation that normalizes subpoenaing fellow members of Congress. But we are long removed from the time where a request to appear before Congress would in itself compel public officials to do the right thing lest they be shamed — or worse, lose the support they need from their constituents to keep their seats. As politically divisive as the Benghazi congressional investigation was, Hillary Clinton still voluntarily showed up when called — and testified for 11 hours.

Congress is out of carrots. It’s time for it to use a stick. For its own survival.

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