Recently (Wednesday 22 December 2021), the House select committee investigating the Capitol invasion requested Rep. Jim Jordan (R-OH) give his “voluntary cooperation” in their probe and answer questions about alleged communications between him and ex-President Trump. General opinion is that Jordan will not provide any testimony for the committee, which leads to speculation about the committee’s next step if he fails to comply.
This follows another request for testimony from Rep. Scott Perry (R-PA), which has so far not resulted in cooperation. Others, who are not sitting members of Congress, have been subpoenaed, including former administration member Steve Bannon and former White House Chief of Staff Mark Meadows, both of whom were recommended to the full House for prosecution for criminal contempt of Congress charges. In each case, the House voted to send those recommendations to the Department of Justice for criminal prosecution, and Bannon has already been indicted.
While it is possible for the committee to subpoena Perry and Jordan, and for the committee to follow up with recommendations for criminal charges, a better way of handling these members of the House is through House procedures. It is well-known that the House can use its inherent power to arrest and imprison those who otherwise refuse to testify in front of Congress, but this has not been done in years and could have resulted in a messy outcome with someone like Steve Bannon.
But based on the inherent power of the House I think the best course with Perry and Jordan is for the House to order them to testify before the committee. For that purpose, I think the committee should look at putting a straightforward motion on the floor of the House that would order these members to give testimony.
For example, the motion for Jordan might look like this:
Resolved:
That Rep. James Daniel Jordan shall work with the Select Committee to Investigate the January 6th Attack on the United States Capitol (the “committee”) to provide all information sought by the committee by giving true and complete information to the committee about any issue related to the attack on the Capitol on January 6th, 2021.
That Rep. Jordan also make available to the committee all pertinent material in his possession which the committee may request.
That Rep. Jordan shall offer such material and testimony on terms that satisfy the committee within the next three business days.
That the Sergeant at Arms is hereby authorized to arrest and detain Rep. Jordan if he fails to comply with this resolution as specified here, or ceases to abide by this resolution at any time in the future until the committee has discharged him from such duty. The House appropriates all funds necessary to arrest and detain Rep. Jordan if the Sergeant at Arms must do so.
What this resolution does is to use the inherent power of the House to compel testimony without requiring any subpoena or other time-consuming mechanism. It gives Jordan three days to make arrangements with the committee to give any testimony they require and to provide any material evidence he might have. That’s enough time for them to set a hearing date.
If he doesn’t make arrangements with the committee within those three days, the Sergeant at Arms can arrest and detain him. That office is allocated funds, which means the Sergeant at Arms can rent space at the local jail (the D.C. jail) to house Jordan, if needed.
This totally avoids the time needed to send a subpoena and have Jordan refuse to testify, and it totally avoids sending this matter over to the DOJ, which might decide this is a political squabble they don’t want to touch. And it avoids any court case, because Jordan could appeal to the courts, but the House could simply ignore such a lawsuit, arrest him, and put him up in jail, and there’s nothing anybody could or would do to help him out. The courts, in any case, probably would find this to be a dispute purely within the legislative branch and decline to rule on it. If they got involved, that would be totally inappropriate anyway.
A similar resolution should be applied to Rep. Perry.
This is much more appropriate than a subpoena and criminal contempt (or a civil action) because Perry and Jordan are sitting members of Congress. As such, the House should just order them, as members, to show up and testify to the committee (and turn over any relevant material). Further, by keeping the process entirely within the House, there’s no opportunity for them to challenge this on the basis of Article I, Section 6, where they may not be questioned “in any other Place”. If they are charged by the DOJ, they might try to escape through that clause.
And, just remember that Article I, Section 5, says:
Each House … may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.
Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.
Arresting and confining a member who refuses to provide pertinent information to a House committee fits squarely within the power of the House to compel the attendance of a member and to punish a member for failure to truthfully provide information, which is certainly disorderly conduct.
I recommend to the Select Committee that they bypass any other means of attempting to get information from House members, such as Perry or Jordan, who otherwise refuse to provide it and go directly to a motion to the full House to order their compliance. This is simpler, quicker, and in many ways easier than other methods.
And, surely, time is of the essence.