New analysis explains how Jan. 6 subpoenas could pan out amid Jim Jordan and Scott Perry's refusal to cooperate

New analysis explains how Jan. 6 subpoenas could pan out amid Jim Jordan and Scott Perry's refusal to cooperate
Rep. Jim Jordan of Ohio speaking at the 2012 Conservative Political Action Conference in Washington, D.C., Gage Skidmore

Reps. Jim Jordan (R-Ohio) and Scott Perry (R-Calif.) are part of the list of Trump allies and Republican lawmakers who have adamantly refused to cooperate with the House Select Committee as they investigate the insurrection on the U.S. Capitol. As a result of their pushback, the two lawmakers are facing subpoenas.

Now, The Washington Post's Jacqueline Alemany, Theodoric Meyer, and Early 202 researcher Tobi Raji, have compiled a detailed analysis of how the subpoenas could play out. They've highlighted three particular aspects that could be a factor in the situation: the boomerang effect, the speech-or-debate clause, and timing.

They began with the idea of "the boomerang effect" which would involve Republicans regaining control of at least one chamber of Congress which would create far more obstacles for Democratic lawmakers investigating the insurrection. Speaking to The Early, Kim Wehle, a law professor at the University of Baltimore, explained how such effects could transpire in the coming months.

"One consideration for Democrats is the possibility of political retribution in the case Republicans win back the majority in the House and/or the Senate in November," they wrote.

“With all of these debates on the constitution issue of first impression, the question is about whether it would boomerang,” Wehle said. “If Republicans take over the House in November, then it's full out war on House Democrats.”

They went on to break down their "speech-or-debate clause" which details what could transpire if lawmakers attempt to push back against subpoenas.

"If lawmakers go to court to fight a subpoena, there are few legal arguments at their disposal," they wrote. "One of those might be the speech-or-debate which states that 'for any Speech or Debate in either House,' lawmakers in Congress 'shall not be questioned in any other Place.' The clause was designed to protect members from having to worry about what they say in the course of legislating that could implicate them in a lawsuit."

As for timing, a court fight over the subpoenas could lead to unprecedented delays that could subsequently set the pace for a timeline that could be in Republicans' favor. "A subpoena fight between the committee and GOP lawmakers, resulting in civil or criminal action, could tie things up in the courts and delay the committee's work," they explained.

However, there is just one problem with that; a small stipulation that could be favorable for Democrats.

"The good news for the committee, according to Wehle, is that the Supreme Court could grant an expedited review — like the court's recent agreement to an expedited review of legal challenges to the Occupational Safety and Health Administration's coronavirus mandates."

Wehle added, “So it's conceivable [the committee] could get an order compelling Jordan to testify between now and November.”

Charles Tiefer, former deputy general counsel for the House of Representatives also weighed in with The Early to offer his take. Tiefer, also a current law professor at the University of Baltimore, insists "the most 'potent weapon in a committee's arsenal' is a criminal referral." To support his theory, The Post pointed to the investigative circumstances surrounding former White House strategist Steve Bannon and former White House Chief of Staff Mark Meadows.

According to Tiefer, the committee should consider "a more balanced approach with a censure or suspension."

“If I were the committee, I'd give serious consideration to just pursuing the member ethically — for a censure or suspension — and not bringing down the heavy club of criminal contempt on one of their own,” Tiefer told The Early, adding that Perry and Jordan “are senior so they would have a lot to lose."

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