Heritage Foundation President Kevin Roberts has filed an ethics complaint with the Office of Congressional Ethics against Rep. Katie Porter (D., Cal.) after her allegation that a witness lied under oath in opposing gun laws three years ago in a hearing. In a hearing this month, she made the allegation against Heritage Foundation legal fellow and Second Amendment expert Amy Swearer. The exchange between Swearer and Porter went viral on the Internet with many liberals praising Porter for the exchange. A closer examination shows that the attack was unfair and unfounded. It is also an increasingly common part of congressional hearings as members seek to intimidate or abuse expert witnesses who hold opposing views. While these ethical complaints are difficult to maintain under the generous rules of the House, Porter’s conduct warrants condemnation.
The Deputy Chair of the Congressional Progressive Caucus, Porter is also on the faculty of University of California (Irvine) Law School, though listed as “on leave.”
The controversy was triggered by a hearing before the House Oversight and Reform Committee on June 8 regarding the “gun violence epidemic” in the United States.
The hearing became heated when Porter questioned Swearer about her testimony during a 2019 hearing exchange with Republican Rep. Jim Jordan on the dangers of “assault weapons.”
What is most striking about the exchange is the refusal of Porter to allow Swearer to respond. Porter asked Swearer about her testimony that legislation could make law-bidding citizens “felons overnight.” Porter was noting that Rep. David Cicilline (D., R.I.) had introduced a bill with a grandfather provision that would allow gun owners to retain firearms they already owned.
Swearer began to respond that “so that is the case under that bill, the problem is…” That is when Porter cut her off as she tried to explain with “reclaiming my time” and telling the Chair “please instruct the witness the time belongs to me.” She then said, “you said yes in response to my question.” Porter continued to refuse to let Swearer fully respond to allegations of possible criminal conduct.
The tactic is an effort to attack witnesses while not allowing them any opportunity to respond. Most citizens do not see these abusive tactics when, as here, allies edit the tapes to make witnesses look evasive or shamed before the committee.
Here are the facts. The exchange concerns a response to Rep. Jordan in a 2019 hearing when he asked about “guns Democrats want to ban,” and asked Swearer “Do you think law-abiding people will be less safe to protect themselves, their family, their property, if this law that the Democrats are proposing actually happens, or this bill that the Democrats are proposing actually becomes law?”
Swearer responded “I think worse than that, sir. You will see millions of otherwise law-abiding citizens become felons overnight for nothing more than having scary looking features on firearms.”
So the gist of Porter’s allegation that Swearer lied under oath is that, at the time of the hearing because the Cicilline bill had a grandfather provision that would allow gun owners to retain firearms they already owned.
Porter then twice said that Swearer “falsely testified under oath” while continuing to prevent her from fully answering that slanderous allegation.
What Swearer was trying to say is difficult to discern from the exchange due to Porter’s obstruction. However, in a later opinion piece, Swearer explained that there were actually multiple bills pending, including one by Rep. Swalwell without such exemptions. However, she believed that even Cicilline’s bill presented such a threat:
“And, as I was trying to explain to Porter before she cut me off, Cicilline’s bill— grandfather provision and all—nonetheless posed serious dangers to peaceable citizens and made it very likely that, as with Swalwell’s bill, many would quickly be turned into felons.
That bill’s two primary problems stemmed from vague wording that seemed poised to make anyone a felon for letting another person so much as handle their pistol-gripped firearm or standard capacity magazine.
The bill made it a felony to transfer the grandfathered firearm to ANY person without first going through a federal firearms licensee and having a background check conducted. The sole exceptions were for the (1) “temporary custody of the grandfathered semiautomatic assault weapon for purposes of examination or evaluation by a prospective transferee,” and (2) “temporary transfer of possession for the purpose of participating in target shooting in a licensed target facility or establish range if the [firearm] is, at all times, kept with the premises of the target facility or range.” Meanwhile, the “grandfathering” of magazines applied only to “possession,” and the law provided no means of legally transferring those magazines to the possession of another.
In other words, the moment any person other than the gun-owner takes physical possession of a grandfathered gun outside of the confines of a gun range without a background check, or takes physical possession of a gun with a standard capacity magazine under any context, multiple felonies have been committed. The moment that law would have gone into effect, countless Americans would have become felons in the literal blink of an eye, countless numbers of times every day. And they’d be felons based on nothing more than the temporary changed possession of a standard capacity magazine or gun with “scary looking features.”
One can reasonably disagree with such analysis, but it is a legitimate opinion and clearly not perjury. Even if you fault the failure to note the grandfather clause in the Cicilline bill, it is perfectly plausible that, as claimed, Swearer was speaking more generally or referencing these other elements. Indeed, Porter could have faulted the earlier omission without alleging that Swearer lied under oath.
What makes Porter’s conduct contemptible is not just that she is making an unfounded allegation of lying under oath, but that she used her position to prevent Swearer from defending her integrity. It was just another canned hunt hearing.
Porter knows that members enjoy protections from defamation lawsuits in speaking in Congress. That exposes witnesses to abuse without legal recourse. It has become common, particularly in the House, for members to use their positions and legal protections to savage witnesses with opposing views.
Later, Porter’s office insisted that the comment that Swearer “falsely testified under oath” is not “a perjury claim, which requires intent and which Rep. Porter did not allege.” However, Porter emphasized (after refusing to let Swearer fully answer) that she admitted that she read the Cicilline — clearly trying to establish a knowing lie.
The House ethics process has long been a subject of ridicule. Critics maintain that it is designed primarily to protect members from ethical charges. It is doubtful that the committee will take any meaningful action.
However, Porter’s conduct creates a chilling effect on any witnesses coming before the Committee when they believe that they will not only be attacked but denied an opportunity to respond to the accusing member. Few academics are willing to be subjected to such abuse under these conditions.
I have testified over 50 times in the House and Senate for both Democrats and Republicans over the last three decades. I often view such testimony as not just an honor but an obligation to respond when called for an opinion on legislative issues. Yet, I have seen an alarming change in these hearings.
Years ago, it would have been viewed as inappropriate to launch such an attack, particularly while reclaiming time to prevent a response. I would have expected the Chair to defend the witness even though she was called by the other party. Politics was just as rough but there was some semblance of rules of basic fairness and decency.
In the age of rage, the loudest and the most aggressive politicians are rewarded. Today, members seem more concerned about avoiding a rage deficit. They know that such tapes will be edited by sympathetic media and pundits and that the most vicious attacks will receive the greatest accolades.
What occurred in the hearing was wrong. Rep. Porter was wrong. She was wrong not in being pro-gun controls but in using a personal attack to try to silence a witness with an opposing view.
She was wrong because she made this serious allegation of potential criminal conduct while refusing to allow the witness to defend herself.
She was wrong by defaming a witness while knowing that Swearer had few options in seeking legal recourse against her.
If the Congress hopes to maintain a free and diverse range of expert testimony, it must reverse this abusive trend in personal attacks on witnesses by either party.