Below is my column in The Hill on the subpoena tsunami coming out of the House Select Committee investigating the Jan. 6th riot in Congress. The list of hundreds of targets include not only GOP members of Congress but demands for secrecy from these companies on the identity of targets. Just two months ago, the Democrats denounced such secret orders by the Justice Department as a threat to our civil liberties.
Here is the column:
“We have quite an exhaustive list of people. I won’t tell you who they are.” With those words, House Select Committee Chair Bennie Thompson (D-Miss.) confirmed that a subpoena storm was about to be unleashed in the investigation of the Jan. 6 riot in Congress. The targets would include Republican members, including House Minority Leader Kevin McCarthy (R-Calif.) and Rep. Jim Jordan (R-Ohio), who have already been told to preserve their phone records to be surrendered to the committee. The Democrats are reportedly trying to prove their prior claims that Republicans conspired or assisted “insurrectionists,” even though the FBI reportedly found no evidence of a planned insurrection.
The Democrats’ move to investigate members of the opposing party is a dangerous precedent in an institution that has always protected the privacy and confidentiality of phone and office records.
Two months ago, House Intelligence Committee Chair Adam Schiff (D-Calif.) was on practically every network denouncing one of “the most dangerous assaults on our democracy” — meaning the Trump administration’s search of phone log information related to Schiff and Rep. Eric Swalwell (D-Calif.) while looking for leakers. For his part, Swalwell publicly fretted about this “fragile time for our democracy” if members could have their phone logs seized through secret surveillance orders issued to telephone companies.
After those disclosures, I testified in Congress on the need for greater protections from secret surveillance for members and reporters alike. At the hearing, the Democratic members expressed nothing short of disgust at the notion of such seizures of member phone logs.
Thompson has now admitted that he has sent letters to telecommunications companies to preserve documents — including phone logs — for hundreds of people, including members of Congress. He would offer only a type of “the usual suspects” response when asked for specificity: “you know, in terms of telecom companies, they’re the ones that pretty much you already know, maybe the networks, the social media platforms, those kinds of things.” Reports indicate that among the “hundreds” will be Trump family members and leading Republicans. The House has decided to subpoena them all and let God (and the courts) sort them out.
This is not the first such subpoena tsunami in the House. A couple years ago, Schiff unleashed a massive secret surveillance order to companies. Schiff expressly barred the companies from informing targets — another abusive tactic that was the subject of the June House hearing. That practice was denounced by many as negating Section 222 of the Federal Communications Act which allows for targets to challenge such orders.
As with the Schiff subpoenas, Thompson is not only refusing to list names of the targets, he has also asked the companies to keep the subpoenas secret. It is not clear that Congress has such enforcement authority for secret subpoenas. What’s more, the Democratic House Judiciary Chairman denounced such secrecy demands just last month, saying “they deny American citizens, companies, and institutions their basic day in court and, instead, they gather their evidence entirely in secret.”
The storm of secret subpoenas also seems to run against the thrust of recent Supreme Court decision, Trump v. Mazars, which addressed congressional subpoenas seeking personal information of the president. In sending the case back for further consideration, the court recognized the broad authority of Congress to issue subpoenas; however, Chief Justice John Roberts wrote that congressional subpoenas must address a “valid legislative purpose” and be “related to, and in furtherance of, a legitimate task of the Congress.”
The “task” at hand in this subpoena storm is highly questionable. The announcement follows an extensive investigation by the FBI and the Justice Department which reportedly did not find any planned insurrection on Jan. 6. The vast majority of the tens of thousands of protesters were not charged. Of the roughly 570 people arrested, virtually all face relatively minor charges for trespass or parading. Only 40 face conspiracy charges. As with violent protests in places like Portland and Seattle, a small percentage of Jan. 6 protesters came prepared and eager for violence and property destruction.
The FBI has already seized the phone records for those arrested, including the small number facing more serious charges. Nevertheless, according to media reports, they found that “90 to 95 percent of these are one-off cases … There was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.”
Moreover, despite federal investigations, neither the FBI nor Congress found any evidence to support the much publicized claims of Democratic members that Republican colleagues helped plan or supplied access or “reconnaissance” tours to “insurrectionists.”
As someone who has long favored congressional authority (and once represented the House), my natural default still remains with the authority of the House to acquire records under Article I. However, even if there were a cognizable legislative purpose, it would not make this move right. Democratic leaders, it seems, clearly do not like the fact that the FBI did not establish a conspiracy to overthrow the country or identify co-conspirators among their Republican colleagues. So, Congress apparently will substitute its own investigation by a special committee entirely controlled by Democrats with virtually no Republican members.
Of course, this is not what Schiff previously denounced as the “politicization of the Justice Department.” Congress is by definition politicized, which is why such fishing expeditions targeting the opposing party are so dangerous. It is using subpoenas to try to embarrass or label members of the minority.
The use of subpoenas for political purposes is nothing new, particularly to paint others as “un-American.” In 1957, the Supreme Court reviewed the contempt conviction of a union official, John Thomas Watkins, who refused to name communist union members to the House Committee on Un-American Activities. The Supreme Court overturned the conviction 6-1, and Chief Justice Earl Warren wrote that “there is no congressional power to expose for the sake of exposure.” Citing the statements of House members, the Court found that “the predominant result can only be the invasion of the private rights of individuals.”
As in the Watkins case, it would seem the point here is to establish that key figures of the opposing party are un-American or “insurrectionists.” Indeed, Rep. David Cicilline (D-R.I.) even sought to censure members who refused to call the riot an “insurrection.”
There are times when the Congress may have serious concerns over whether an administration scuttled or undermined an investigation. No such claim has been made here.
Jan. 6 remains a national disgrace and a desecration of our constitutional process. Many of us welcomed any further inquiries that might shed light on what occurred or what might have prevented this tragedy. However, that is no license to weaponize a national tragedy for political purposes.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.
Voters of both parties would enjoy reading “Prelude to McCarthyism…the making of a blacklist” by Robert Justin Goldstein in 2006 published by the National Archives (www.archives.gov). Change a few names and words around, it’s the same playbook.
What’s remarkable about Goldstein’s article is it really wasn’t about communism or constitutionally-subversive activities. The article is about exploiting national tragedies to punish one’s political enemies. Maybe it’s time for fundamental reforms to end this unAmerican and unconstitutional practice?
McCarthy was 100% correct. The is a reward if you prove anybody he named was not a communist.
The Democrats and their allies in Big Tech have been deep into purges and blacklists for several years now. Then add to that the New Cold War hysteria that accompanied the Russiagate hoax.
Things have gone bad for the Biden admin so this is the distraction. Schiff will promise he has proof as he did of Russian collusion. Only wonder why we’ve never seen it and it was not given to Mueller either.
More of the same nonsense.
As for Jan. 6th someone find out why there wasn’t more security. The nations capital has had far bigger protests and managed. How did about 1000 of 50,000 get so out of hand. That is the crime to be investigated.
“The “task” at hand in this subpoena storm is highly questionable. The announcement follows an extensive investigation by the FBI and the Justice Department which reportedly did not find any planned insurrection on Jan. 6.”
The investigations by the FBI and DOJ are ongoing, and neither has made a statement along the lines of “we did not find any planned insurrection on Jan. 6.” Turley is leaning heavily on words like “reportedly” throughout the column. Turley himself notes that 40 people have already been charged with conspiracy.
On the first day of testimony of this committee, Rep. Thompson asked the officers who were testifying: “what would you task this committee in its body of work? What would you like to see us do? Officers Fanone, I’ll start with you.”
Officer Fanone:
“Yes, sir. So while I understand it there have been investigations into the events of January 6th, my understanding is that those have addressed some of the micro level concerns. That being the immediate security of the Capitol building itself, also the forced mobilization of Officers that day, planning and preparation and training and equipment concerns.
“A lot of the events of January 6th and the days proceeding, I guess it’s interesting from a law enforcement perspective as a Police Officer, a lot of these events happen in plain sight. We had violent political rhetoric. We had the organization of a rally whose title was Stop The Steal, and that that rally occurred on January 6th, which I don’t believe was a coincidence that on January 6th members of Congress, you here in the room today, were charged with tallying the electoral votes and certifying the election of our President.
“And in the academy, we learn about time, place and circumstance in investigating potential crimes, and those who may have committed them. And so the time, the place and the circumstances of that rally, that rhetoric and those events to me leads in the direction of our President and other members, not only of Congress and the Senate, but that is what I’m looking for, is an investigation into those actions and activities, which may have resulted in the events of January 6th. And also whether or not there was collaboration between those members, their staff, and these terrorists.”
Officer Hodges:
“I think Fanone hit the nail on the head there. As patrol Officers, we can only deal with the crimes that happen on the streets, the misdemeanors, and occasionally the violent felonies, but you guys are the only ones we’ve got to deal with crimes that occur above us. And I need you guys to address if anyone in power had a role in this, if anyone in power coordinated, were aided or abetted or tried to downplay, tried to prevent the investigation of this terrorist attack, because we can’t do it. We’re not allowed to. And I think a majority of Americans are really looking forward to that as well.”
Officer Dunn:
“Thank you, Chairman. There’s been a sentiment that’s going around that says everybody’s trying to make January 6th political. Well, it’s not a secret that it was political. They literally were there to Stop The Steal. So when people say it shouldn’t be political, it is. It was, and it is. There’s no getting around that. Telling the truth shouldn’t be hard. Fighting on January 6th, that was hard. Showing up January 7th, that was hard. The 8th, the 9th, the 10th, all the way till today, that was hard. When the fence came down, that was hard. When we lost our layer of protection that we had, and the fence came down and still nothing has changed. Everything is different, but nothing has changed.
“Liz Cheney and Adam Kinzinger are being lauded as courageous heroes, and while I agree with that notion, why? Because they told the truth? Why is telling the truth hard? I guess in this America, it is. Us four Officers, we would do January 6th all over again. We wouldn’t stay home because we knew it was going to happen. We would show up. That’s courageous, that’s heroic. So what I ask from you all is to get to the bottom of what happened. And that includes -, I echo the sentiments of all of the other Officers sitting here. I use an analogy to describe what I want is a hitman. If a hitman is hired and he kills somebody, hitman goes to jail, but not only does the hitman go to jail, but the person who hired them does. There was an attack carried out on January 6th, and a hitman sent them. I want you to get to the bottom of that. Thank you.”
Officer Gonell had answered earlier:
“I think in my opinion, we do need to get to the bottom of this: who incited, who brought those people here. Why the people were made to believe that the process was rigged.”
The committee is investigating this.
” Turley himself notes that 40 people have already been charged with conspiracy.”
Charged is meaningless. Seven months in and we have yet to swear in a jury and present evidence to impeach.
I know your a big fan of kangaroo courts and persecuting those of who practive different from politics than yourself, but today all of 40 people are innocent.
“Seven months in and we have yet to swear in a jury …”
That’s pretty common for trials on federal criminal charges, especially since the length of time usually isn’t measured from when the crime occurs.
“I know your a big fan of kangaroo courts and persecuting those of who practive different from politics than yourself”
No, I’m not. Unfortunately, it’s unsurprising that you’d falsely claim I am.
Thanks anonymous for that contribution. Turley is a lawyer for the House Republicans- he once acknowledged counseling them in their chambers. He is not acting as an impartial commentator; he is an advocate for the Republican House- which explains his silence on denouncing McCarthy’s unprecedented threat to punish the telecom companies who accede to legal subpoenas.
This is all about impeaching Trump again if he gets in. They are setting the stage with the Jan 6 commission, using this to start impeachment proceedings.
Impeach Trump if gets back in, why wait, do it now.
Old man,
You may recall that Turley criticized the Democrats for their “Snap Impeachment.” Can you blame them for preparing well in advance for any future impeachments of Trump? They learned their lesson, and it won’t be repeated next time!
Numbers don’t lie. Since 9/11 there over a million persons on various terrorist watchlists. Any legitimate program, using legitimate evidence, should net a minimum of a 70% terrorism-conviction rate. Terrorism-convictions should greatly exceed 700,000 persons convicted of terrorism.
If there is legitimate probable cause evidence, most terrorism-searches (homes, cars, computers, etc) should result in terrorism-convictions. The statistics would indicate that terrorism-authorities are being exploited for non-terrorism cases bypassing constitutional due process – which police, FBI and homeland officials swear to uphold.
Meanwhile, Reuters broke a story with transcripts from a conversation with the 46th President and the former leader of Afghanistan that highlight this administrations knowledge of the confusion that led to botched exit and their subsequent gaslighting of the citizens of this nation and those around the world. He threw our military under the bus, granted himself a pass from the requirement to inform congress about the exit, acted unilaterally and is unapologetic in his speech (at least the speech he read from the teleprompter). One wonders if he is cognitively impaired or if he is just playing the fool…or both.
This is a classic case of psychological warfare, propaganda, and deception. People have died, will die, and oppression will ensue. This debacle and stunning ineptitude will haunt us for years and years to come.
We are witnessing the direct assault of the United States of America not by mainstream political parties, everyday citizens and their families, but by those from within who mean us harm, those who wish to bring this nation and all that is stands for down. One need only put on lenses that cut out the noise and look deeper to see what is really at play.
Dear leader will take no more questions on Afghanistan. Case closed, move on.
Stalin, Hitler, Pol Pot, Mao are all smiling in approval.
No ones life, liberty or property is safe while the legislature is in session. While such actions are indeed deplorable, I’d rather the House Dems waste time trying to make inane political points than actually try to legislate. And remember, what goes around comes around. I’m sure there will be plenty of fodder for House Republicans to investigate, based just on the first 7 months of this clown show
Some people don’t like gridlock. Personally I like it. That way they can’t hurt us.
Whig says:
“And remember, what goes around comes around.”
Exactly, the Trumpists took their shot. Now, it’s our turn to go after you. What goes around comes around. Remember that.
Turley is taking quite a few liberties here, fact is that nobody has been subpoenaed at all, requests have been made, maybe words don’t matter. He also phrased Thompson as having “admitted” things. He sees conspiracies everywhere while claiming the FBI has absolved the administration and Republicans of working with the mob while in fact very few people have been interviewed, certainly not the Republican Congressmen who spoke to the President during the insurrection and who had contact with some of those arrested. Turley is aiding and abetting those of you unable to think for yourselves.
So the Republicans can dish it but they can’t take it.
These activities constitute a waste of precious resources, especially in view of the conclusions of the FBI. The targets will have to defend, hire counsel and divert attention from the work of the people. The Democrats continue to act outrageously!
The FBI itself hasn’t made a statement. That’s why Turley says “reportedly.”
If Democrats want to remain in power, they should totally dismantle the largely fraudulent and unconstitutional RESPONSE to 9/11 started by the Bush Administration. Mission-creeping to label Trump supporters as “terrorists” is exactly the wrong move.
Democrats should call the response (after 20 years) what it really is: a fraud and mission-creep targeting and harming non-terrorists and mostly innocent Americans.
Democrats opposed Bush, Ashcroft and friends violating their own Oath of Office, what changed? It’s the wrong move to justify and legitimize one of the biggest frauds is USA history just to go after Trump supporters.
Well, the Dems need enough distraction to get them through the 2022 and probably the 2024 election cycles because they know they’re in big trouble. This will be another “Russiagate” circus, without Russia, although never underestimate Schiff’s ability to pull Russia into anything. You’d think that after the FBI report, the Dems would see the light. But again, the elections demand some kind of extraordinary deception and deflection. If only they had been this “diligent” when BLM/Antifa were burning federal buildings and police precincts (sometimes with people inside). If American liberals had one brain cell among them, the Democratic Party would be extinct by now.
Giocon1,
I thought you Trumpists distrusted the FBI as part and parcel of the sinister “Deep State.” You guys refused to accept the FBI’s determination that the Rightwing militias were a greater threat than Antifa. But now you trust the FBI’s conclusion that it found no evidence of abconspiracy to overthrow the government.
Utter hypocrites!
Anyone with a brain knows what happened on January 6, but as anyone with a brain knows what happened on 9/!!. We don’t need Congressional – or even DOJ – investigators to spin a story. It’s very simple. There were a lot of pissed-off people in Washington and some of them went inside the Capitol where Congress was being informed of the vote of the Electoral College. Although many – including Turley – constantly refer to their venture into the Capitol as “trespass”, videos taken at the time reveal that someone inside the building opened the doors and allowed some of those there to come in. The so-called “trespassers” did very little damage although the media and politicians claimed it “millions.” In fact, there was one table turned over and a window was broken. Then a Capitol cop shot and killed an unarmed woman and claimed he “saved lives” and so on and so forth. In short, the whole thing is travesty. We have a Congress that is out of control. This country is in really big trouble, with a government presided over by a doddering old fool who just caused the worst disaster in the history of the US government.
“videos taken at the time reveal that someone inside the building opened the doors and allowed some of those there to come in.”
And videos taken at the time reveal that others broke in, smashing windows and climbing through them, beating police with batons, …
“The so-called “trespassers” did very little damage although the media and politicians claimed it “millions.” In fact, there was one table turned over and a window was broken.”
If you think that’s the only damage that was done, you’re willfully ignorant.
“a government presided over by a doddering old fool who just caused the worst disaster in the history of the US government.”
Wow. Interesting that you believe the exit from Afghanistan to be worse than the Civil War, worse than WW2, worse than the 640,000 and growing number of dead from Covid, … Maybe your standards are a bit off.
Semcgowanjr,
Turley rightly calls what Trumpists did on 1/6 a “desecration” of our Capitol. You disagree with Turley?
570 mostly peaceful protestors arrested.
That gives law enforcement probable cause to subpoena 570 different individuals communications and social network platforms. The ugly facts reveal that there is no communication with White House personnel specifically, or Republicans in general.
This is the rule of law. Probable cause, investigation, charges supported by evidence.
Thanks again to Turley for being a spokesman for the constitution and equal justice. It must suck to be a leftist to know the constitution often benefits the Righteous.
(BTW, thanks for illustrating how Democrat Leadership ignores the constitution on a reqular basis, and operates using flagrant double standards)
It seems the Democrats continually find ways to destroy our Democracy and if they are empowered by the people, they will destroy our Democracy, our Republic, and our very system of Justice. The beacon of light for the world, is quickly becoming the culture of darkness. We have always taken pride in our Constitutional freedoms…until now.
This is surely a time in our history, that will go down in infamy.
Dems better win every election going forward, because payback hurts.
Our system of governance is under attack by the Dems; consequences are incalculable.
A real crisis is Americans forgetting what really makes America unique and great. Unlike despotic regimes and unlike our foreign enemies – citizens, police, Congress, judges, intel agencies, military and presidents swear supreme loyalty to the U.S. Constitution – NOT the nation directly and NOT to the people directly.
Congress and state legislatures should start educating both citizens and oath-sworn officials on their proper loyalty. This affects almost every issue in America today from torture to censorship to foreign affairs.
As Biden implodes, these tactics will only increase. Must distract!
Words are no linger sufficient regarding these tyrants. I honestly don’t know what to say at this point, other than that if our elections are once again riddled with dem fraud next year, it might be time to cross the ocean. Just unbelievable, and in light of the past eight months, despicable bordering and pernicious.