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Lawmaker’s Refusal to Testify About Jan. 6 Heads Toward Constitutional Challenge

January 10, 2022 by Tom Ramstack
Lawmaker’s Refusal to Testify About Jan. 6 Heads Toward Constitutional Challenge
Rep. Mike Conaway, of Texas, and Rep. Jim Jordan (left), of Ohio, during the recent House impeachment hearings. (Photo by Dan McCue)

WASHINGTON — Rep. Jim Jordan, R-Ohio, appears to be forcing a constitutional showdown over his refusal to testify to a congressional committee investigating the Jan. 6, 2021, insurrection at the Capitol.

Jordan notified the House select committee by a letter Sunday that its request to interview him was an “unprecedented and inappropriate demand.”

Jordan admits he spoke with former President Donald Trump on Jan. 6 but has not revealed details.

Among the roughly 300 witnesses the committee has interviewed so far, several revealed Trump sat in a dining room next to the Oval Office of the White House watching the insurrection on television.

He did not intervene to stop it as it turned violent, leading to speculation he might have been trying to encourage the mob’s effort to overturn the election of Joe Biden as president.

The committee sent Jordan a letter requesting his testimony on Dec. 22, 2021. His official refusal on Sunday said, “Your attempt to pry into the deliberative process informing a member about legislative matters before the House is an outrageous abuse of the Select Committee’s authority.”

Jordan posted a copy of the letter on his Twitter account.

The House select committee fired back at Jordan with a statement Monday accusing him of evading his responsibilities.

“Jordan has previously said that he would cooperate with the committee’s investigation, but it now appears that the Trump team has persuaded him to try to hide the facts and circumstances of Jan. 6,” a committee spokesperson said. “The Select Committee will respond to this letter in more detail in the coming days and will consider appropriate next steps.”

Rep. Bennie Thompson, the committee chairman, told NBC’s “Meet the Press” in a Jan. 2 interview that he will subpoena members of Congress if it is a practical option.

“Well, I think there are some questions of whether we have the authority to do it,” said Thompson, D-Miss. “We’re looking at it. If the authorities are there, there’ll be no reluctance on our part.”

A subpoena is an order from a government agency or court to compel witness testimony or production of evidence. Anyone who refuses to comply with a subpoena from Congress could be criminally prosecuted by the Justice Department.

Federal lawmakers have so far always avoided liability for their actions in office by invoking the Speech and Debate Clause in Article 1, Section 6 of the U.S. Constitution.

The clause grants them immunity from arrest while attending to their official duties in Congress, unless they engage in treason, a breach of the peace or a felony. They also are exempted from arrest or interrogation for any of their statements.

Thompson and other lawmakers, such as Rep. Liz Cheney, R-Wyo., said the Jan. 6 riot is unlike any other investigation by Congress. Never in American history has a domestic disturbance included a violent break-in at the Capitol, apparently with encouragement from a president and his advisors.

Jordan was one of Trump’s strongest supporters in Congress. During an April 2018 interview by CNN’s Anderson Cooper, Jordan said he had never heard of Trump telling a lie. He added, “I don’t know that [Trump has ever] said something wrong that he needs to apologize for.”

In December 2020, Jordan was one of 126 Republicans who signed an amicus brief in Texas v. Pennsylvania that urged the Supreme Court to overturn the 2020 election in which Biden defeated Trump for the presidency. The Supreme Court declined to hear the case.

Thompson’s letter requesting an interview with Jordan asked for information about any of the congressman’s communications on Jan. 5 or 6 with Trump’s legal team and White House staffers, particularly the ones who assembled at the Willard Hotel before the riot. The letter asked Jordan for information about anyone “involved in organizing or planning the actions and strategies for Jan. 6.”

Jordan has made conflicting statements about his communications with Trump and his staff before or during the insurrection.

Jordan described his acknowledgment that he spoke with Trump on Jan. 6 as a routine part of his job as a congressional leader.

In July, he said in media reports that he was uncertain whether he spoke with Trump on Jan. 6.

In an August interview with Politico, he said he spoke with Trump “more than once” on Jan. 6.

The select committee’s chances of successfully subpoenaing Jordan won a boost last month from a federal judge in Florida.

U.S. District Judge Mary Scriven denied a temporary restraining order for former Trump National Security Advisor Michael Flynn to avoid testifying to the select committee. He had invoked executive privilege as a presidential advisor.

Executive privilege is rooted in the Constitution’s separation of powers as a means of protecting politicians from reprisal for their official actions, similar to the immunity granted to members of Congress.

Scriven said Flynn failed to show an “irreparable harm” if he was compelled to testify.

Tom can be reached at [email protected]

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