Former federal prosecutor says Kevin McCarthy's 'threatening' response to Jan. 6 committee could be criminal

Former federal prosecutor says Kevin McCarthy's 'threatening' response to Jan. 6 committee could be criminal
Rep. Kevin McCarthy // PBS NewsHour

Republican House Minority Leader Kevin McCarthy drew criticism on Tuesday after he issued a statement in an apparent attempt to hinder the Jan. 6 committee's ongoing investigation. Some even argued McCarthy's broadside may constitute criminal obstruction of justice.

The House select committee pursuing the case sent requests this week to social media outlets and telecommunications companies, asking them to preserve records that might be of interest to the investigation. ABC News reported:

While the requests do not single out any lawmakers or members of the Trump family by name, the committee is focusing its inquiry on Republicans closely associated with the 'Stop the Steal' effort and who spoke at the rally on the morning of Jan. 6, according to a committee source.
The committee is also interested in the records of Ivanka Trump, who worked in the West Wing, and Donald Trump Jr. and Eric Trump, who worked on their father's reelection bid.

This move apparently spooked McCarthy, prompting him on Tuesday to push back in a statement:

Adam Schiff, Bennie Thompson, and Nancy Pelosi's attempts to strong-arm private companies to turn over individuals' private data would put every American with a phone or computer in the crosshairs of a surveillance state run by Democrat politicians. 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. 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.

From the start, McCarthy is over his skis. He accused the Democrats of "attempts to strong-arm private companies to turn over individuals' private data," but the committee's preservation request doesn't yet rise to that level. And it's not clear what "federal law" the committee's request would violate.

But worse than misstating the facts, McCarthy may be improperly interfering in the investigation. Ken White, a former federal prosecutor and legal analyst who is typically restrained in his application of federal law, argued on Twitter that there's a decent, if not decisive, case that McCarthy's threat is criminal.

"This may not be criminal, but it is a colorable law school exam question for obstruction of justice, worth the analysis," White wrote. "In effect [McCarthy] is threatening to use future unspecified legislation to punish witnesses for responding to legal process. I could convince a jury he's acting with the required corrupt mental state. There are other complications."

He linked to the federal obstruction of justice statute in the U.S. criminal code for reference.

"Now, maybe McCarthy genuinely believes the requests for docs are unlawful. There are remedies for that -- like suing and seeking injunctive relief, a protective order preventing compliance. You know, the rule of law. What you do if you have a legal argument," he continued. "By contrast, 'we think these official demands from Congress are invalid and if you abide by them we will use majority control of Congress to punish you' sounds like a good example of 'corruptly' under the statute to me."

Glenn Kirschner, another former federal prosecutor who tends to be more enthusiastic about applying criminal statutes to novel situations, agreed:

It's nevertheless extremely unlikely that the Justice Department under Attorney General Merrick Garland would pursue this case. He's shown a clear hesitancy to act in any way that might be perceived as overly partisan, and it's hard to imagine he would stick his neck out on a relatively novel case that targets the House minority leader.

However, it's notable that McCarthy is skating so close to the legal line, if not crossing it. Legal expert Elizabeth de la Vega argued it suggested a guilty conscience on his part:

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