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Can a Congressional Committee Subpoena Members of Congress?

LawFare: “As part of its investigation into the attack on the U.S. Capitol and efforts to overturn the results of the 2020 presidential election, the Jan. 6 committee has requested information and testimony from several sitting members of the House of Representatives.  The committee has also requested that telecommunications companies preserve the phone records of some members of Congress. However, Reps. Scott Perry and Jim Jordan and House Minority Leader Kevin McCarthy have all announced that they will not cooperate with the committee.  Rep. Bennie Thompson, chair of the committee, has stated there is “no reluctance to subpoena” any member who does not cooperate if their “testimony is germane to the mission of the select committee.” But other than the House and Senate Ethics Committees, it appears that no congressional committee has ever issued a subpoena to a sitting member of Congress. Some committee members, including Thompson, have raised questions about the committee’s authority to subpoena members of Congress. And numerous press outlets have reported that the committee’s authority to issue a subpoena to a member of Congress is a matter of dispute.  In this post, we offer a guide on the authority of a congressional committee to issue a subpoena to a sitting member of Congress—and the potential to have that subpoena enforced if the recipient defies it. The committee’s subpoena authority depends on three basic questions: whether its subpoenas are legally valid, whether it has a mechanism to enforce its requests, and whether the committee determines that attempting to subpoena members is worth the political and institutional costs. On the first question, the committee is very likely on solid ground. The second and third questions are far more complicated…”

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