For their failure to cooperate with the investigation of the attack on the U.S. Capitol, the Jan. 6 committee on Monday officially requested that the House Ethics Committee assess whether four Republican lawmakers violated congressional ethics rules.
Those referred to the House Ethics Committee are House Minority Leader Kevin McCarthy of California and Reps. Jim Jordan of Ohio, Andy Biggs of Arizona, and Scott Perry of Pennsylvania.
The decision is unlikely to gain serious traction given the current dynamics in Congress: The House will be Republican-controlled next year and the House Ethics Committee itself is evenly split between Democrats and Republicans. Additionally, Investigations by the ethics committee into members of Congress are rare and often move slowly, given the required steps to conduct such a probe. Daily Kos interviewed David Laufman, former investigative counsel to the House Ethics Committee, last October to unpack the process.
All five lawmakers were subpoenaed earlier this year and refused cooperation while simultaneously criticizing the probe publicly as a political witch hunt. Both Biggs and Jordan echoed those sentiments on Monday after the committee announced its referrals.
Biggs, who is running for speaker of the House against McCarthy, called the decision by the Jan. 6 probe its “final political stunt” on Twitter Monday and said it was “inappropriate” to utilize the House Ethics Committee to reach a “pre-determined” conclusion.
Biggs’ commentary on what is or is not appropriate may seem odd given his most recent tirade relying on conspiracy theory over fact.
Biggs was an early advocate of Trump’s Big Lie and messaged then-White House chief of staff Mark Meadows on Nov. 6, calling on Meadows to appoint alternate electors for Trump. Trump, Biggs urged, should not concede his defeat.
In the executive summary of the select committee’s final report published on Monday, investigators on the panel urged the House Ethics Committee to act.
“If left unpunished, such behavior undermines Congress’s longstanding power to investigate in support of its lawmaking authority and suggests that members of Congress may disregard legal obligations that apply to ordinary citizens,” the summary states.
McCarthy was of interest to the probe because of his direct engagement with Trump on Jan. 6.
He spoke to Trump by phone during the siege, as well as Trump White House insiders like Ivanka Trump and Jared Kushner.
Rep. Jaime Herrera Beutler, a Washington Republican, told the committee McCarthy relayed his conversation with Trump to her directly.
“And he said [to President Trump], “You have got to get on TV. You’ve got to get on Twitter. You’ve got to call these people off.” You know what the President said to him? This is as it’s happening. He said, “Well Kevin, these aren’t my people. You know, these are Antifa. And Kevin responded and said, “No, they’re your people. They literally just came through my office windows and my staff are running for cover. I mean they’re running for their lives. You need to call them off.” And the President’s response to Kevin to me was chilling. He said, “Well Kevin, I guess they’re just more upset about the election theft than you are.”
McCarthy’s remarks were corroborated by Mick Mulvaney, Trump’s former acting White House chief of staff.
The House minority leader told reporters at CBS and Fox on Jan. 6 that he spoke to Trump and urged the outgoing president to issue a statement calling for peace. In talks with Republican leadership in the immediate aftermath of Jan. 6, McCarthy discussed Trump’s resignation and invoking the 25th Amendment to remove him from office for being unfit. When Trump was impeached by the House for incitement of insurrection, McCarthy voted against impeachment but said “the president bears responsibility” for the attack.
“He should have immediately denounced the mob when he saw what was unfolding,” McCarthy said in January 2021.
According to the committee, McCarthy told Republican members he believed Trump was responsible for the attack, and when he spoke to Trump, Trump agreed he was culpable—at least in part.
“I asked him personally today, does he hold responsibility for what happened? Does he feel bad about what happened? He told me he does have some responsibility for what happened. And he need[s] to acknowledge that,” McCarthy said.
As for Rep. Jordan, the committee noted in its executive summary on Monday: “Representative Jordan was a significant player in President Trump’s efforts. He participated in numerous post-election meetings in which senior White House officials, Rudolph Giuliani, and others, discussed strategies for challenging the election, chief among them claims that the election had been tainted by fraud.”
Jordan was a participant on a conference call with Trump on Jan. 2 in which delay strategies were discussed. That same day, Jordan and Trump spoke by phone for an hour.
A day before the insurrection, Jordan was in contact with Mark Meadows, Trump’s chief of staff. Jordan offered advice to Meadows about how then-Vice President Mike Pence could intervene in the joint session on Jan. 6. Pence did not have that authority and Jordan showed himself to be a less-than-capable reader of the Constitution.
Jordan also spoke to Trump on Jan. 6 at least twice. His public accounting of that day has been littered with inconsistencies.
Evidence collected by the committee indicates Trump’s lawyer, Rudy Giuliani, called Jordan at least five times on the evening of the 6th. Jordan picked up at least two of those calls. Giuliani told the committee he reached out to Jordan because he was one of several lawmakers he called, pleading with them to keep up the spirit and object to the electoral slates once the joint session finally resumed.
Former White House aide Cassidy Hutchinson also testified that Jordan was among those members of Congress who discussed presidential pardons after the attack. But, she added, he never asked for one directly.
Rep. Scott Perry, who has been on the Justice Department’s Jan. 6 radar for quite some time, was a key proponent of Trump’s Big Lie after the 2020 election. Both he and Jordan were involved in conversations about the objection strategy but it was Perry who arguably had the more influential role. Perry introduced Trump’s chief of staff Mark Meadows to Jeffrey Clark, a mid-level Justice Department lawyer at the time who believed that the election had been “stolen.”
Perry pushed for Trump to speak at the Capitol on Jan. 6, the committee says, and he was among those lawmakers who asked for a pardon once the attack was over.
The lawmakers’ refusal to cooperate with the investigation was “flagrant,” the committee wrote it in the executive summary of its final report.
“The Rules of the House of Representatives make clear that their willful noncompliance violates multiple standards of conduct and subjects them to discipline. Willful noncompliance with compulsory congressional committee subpoenas by House Members violates the spirit and letter of House Rule XXIII, Clause 1, which requires House Members to conduct themselves “at all times in a manner that shall reflect creditably on the House,” the report states.
House Ethics Committee rules dictate that its members can go on a fact-gathering mission when assessing whether a lawmaker violated ethics rules and the body can use subpoenas to compel documents. While this avenue wasn’t particularly successful with McCarthy, Jordan, or Biggs, one particular notable difference here is that members cannot claim privileges like the Speech and Debate clause to avoid scrutiny.
But the ethics committee would also require a vote to start a probe. If just one Republican currently sitting on the panel breaks ranks, the next step would be the formation of an investigative subcommittee. From that point, a full investigation would be conducted and House Ethics would issue what is known as a “statement of alleged violation.”
With enough information, liability could potentially be established and from there, accountability would come by way of a “letter of reproval” of that member or a formal reprimand. A letter of reproval does not require a full House vote, but a reprimand does.
Only 11 members of Congress have been reprimanded since the process first began in the 1960s.