WaPo analysis explores what could happen next with House GOPers' historic subpoenas

WaPo analysis explores what could happen next with House GOPers' historic subpoenas
Rep. Kevin McCarthy of California speaking at the 2016 Republican National Convention, Wikimedia Commons

A Washington Post analysis is exploring a number of possibilities that could occur now that House Republicans are facing subpoenas for their alleged involvement in the Jan. 6 plot to overturn the presidential election.

Aaron Blake, a staff writer for The Post, noted that the truth remains uncertain. He acknowledged: "Precisely what happens next is anyone’s guess, thanks to what we mentioned at the top — the lack of precedent. But it’s worth reviewing the few analogous situations we have, along with the practical and strategic considerations for the Jan. 6 committee,"

He also developed a list of the legal options that may arise with the latest subpoenas. "Setting aside the question of who would win a legal fight over the committee’s powers, there’s the method for how it gets resolved," Blake wrote.

"Generally speaking," he wrote, "there are three legal options on the table and a fourth administrative option for the House if the members resist the subpoenas, as expected:

  1. Refer members who defy subpoenas to the Justice Department for criminal prosecution.
  2. Go to civil court to compel the testimony.
  3. Have the sergeant-at-arms arrest and detain the member.
  4. Punish the member through fines or by stripping them of committee assignments."

Out of all four options, Blake highlighted that the fourth alternative might actually be the most effective. Last week, University of Chicago law professor Albert W. Alschuler also expounded on the fourth option.

He wrote:

Better still would be daily fines, which could escalate for every day or week of noncompliance. One judge doubts that resurrecting the use of Congress’s inherent power to sanction contempt remains a realistic option. He worries that Congress would risk “physical combat with the Executive Branch” by “dispatch[ing] the Sergeant-at-Arms to arrest and imprison an Executive Branch official.” But ordering a contemnor to pay a fine to the sergeant at arms for every day of noncompliance would be unlikely to lead to a shootout.A House resolution imposing this fine could authorize the sergeant to use all available civil processes to collect it. The contemnor could challenge the legality of Congress’s action by bringing an injunctive action against this officer. She also could take the riskier path of waiting to present her defenses until the House sought recovery of her accumulated fines in a civil lawsuit. If the contemnor refused to pay after a court ordered her to do so, the House could use the same collection procedures other judgment creditors employ — for example, garnishing the contemnor’s wages. Guns, handcuffs and hotel rooms wouldn’t be needed.


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