Photo credit: Tyler Merbler/Wikimedia Commons
The ripples of the explosive Tuesday testimony that four police officers gave before the House Select Committee to Investigate the January 6th attack on the United States Capitol continue to spread. Committee members are meeting this week to decide how they will proceed. Congress goes on recess during August, but committee chair Bennie Thompson (D-MS) suggested the committee would continue to meet during that break.
Committee members are considering subpoenas to compel the testimony of certain lawmakers, especially since the Department of Justice on Tuesday announced that it would not assert executive privilege to stop members of the Trump administration from testifying to Congress about Trump’s role in the January 6 insurrection.
This is a change from the Trump years, when the Department of Justice refused to acknowledge Congress’s authority to investigate the executive branch. This new directive reasserts the traditional boundaries between the two branches, saying that Congress can require testimony and administration officials can give it.
Furthermore, on Thursday the Department of Justice rejected the idea that it should defend Congress members involved in the January 6 insurrection. This is important because Representative Eric Swalwell (D-CA) has sued Alabama Representative Mo Brooks, as well as the former president and Trump lawyer Rudy Giuliani, for lying about the election, inciting a mob, and inflicting pain and distress.
Famously, Brooks participated in the rally before the insurrection, telling the audience: “[W]e are not going to let the Socialists rip the heart out of our country. We are not going to let them continue to corrupt our elections, and steal from us our God-given right to control our nation’s destiny.”
“Today,” Brooks said, “Republican Senators and Congressmen will either vote to turn America into a godless, amoral, dictatorial, oppressed, and socialist nation on the decline or they will join us and they will fight and vote against voter fraud and election theft, and vote for keeping America great.”
“[T]oday is the day American patriots start taking down names and kicking ass!” he said. He asked them if they were willing to give their lives to preserve “an America that is the greatest nation in world history.” “Will you fight for America?” Brooks asked.
To evade the lawsuit, Brooks gave an affidavit in which he and his lawyers insisted that this language was a campaign speech, one in which he was urging voters to support Republican lawmakers in 2022 and 2024. But Brooks also argued that the Department of Justice had to represent him in the lawsuit because he was acting in his role as a congress member that day, representing his constituents.
Brooks stumbled over his own shoes: the Department of Justice declined to take over the case, pointing out that campaign and electioneering activities fall outside the scope of an elected official’s employment. It goes on to undercut the idea of protecting any lawmaker who participated in the insurrection, saying that “alleged action to attack Congress and disrupt its official functions is not conduct a Member of Congress is employed to perform.”
This means Brooks is on his own to defend himself from the Swalwell lawsuit. It also means that lawmakers intending to fight Committee subpoenas are going to be paying for their own legal representation.
If the Committee does, in fact, start demanding that lawmakers talk, Brooks is likely on the list of those from whom they will want to hear. Trying to bolster the new Republican talking point that House Speaker Nancy Pelosi (D-CA) should have been better prepared for the insurrection (this is a diversion: she has no say over the Capitol Police, and she did, in fact, call for law enforcement on January 6), Brooks told Slate political reporter Jim Newell that he, Brooks, knew something was up. He had been warned “on Monday that there might be risks associated with the next few days,” he said. “And as a consequence of those warnings, I did not go to my condo. Instead, I slept on the floor of my office. And when I gave my speech at the Ellipse, I was wearing body armor.”
“That’s why I was wearing that nice little windbreaker,” he told Newell. “To cover up the body armor.”
Brooks is not the only one in danger of receiving a subpoena. Representative Jim Jordan (R-OH) admitted on Fox News that he spoke to the former president on January 6, although he claimed not to remember whether it was before, during, or after the insurrection. He tried to suggest that chatting with Trump on January 6 was no different than chatting with him at any other time, but that is unlikely to fly. Jordan also repeatedly referred to Trump as “the President,” rather than the former president, a dog whistle to those who continue to insist that Trump did not, in fact, lose the 2020 election.
Meanwhile, it looks more and more like Republicans, including House Minority Leader Kevin McCarthy (R-CA), are eager to change the subject. McCarthy today tried to walk back his previous blaming of Trump for the events of January 6, trying instead to tie Pelosi to the riot. He told reporters that when he said on January 6 that “[t]he President bears responsibility for Wednesday’s attack on Congress by mob rioters” and that Trump “should have immediately denounced the mob when he saw what was unfolding,” he made the comment without “the information we have today.” Then he tried to blame Pelosi for the Capitol Police response.
McCarthy seems unable to figure out how to handle the changing political dynamic and is continuing to shove the octopus of his different caucus interests into the string bag he’s holding only by promising that the Republicans will win in 2022. To that end, he is essentially walking away from governance and focusing only on the culture wars.
In addition to pulling the Trump Republicans off the select committee on the insurrection, he also pulled all six of the Republicans off a key committee on the economy, the Select Committee on Economic Disparity and Fairness in Growth. At a time when voters in all parties are concerned with the huge divergence in income and wealth in this country, a divergence that rivals that of the 1850s, 1890s, and 1920s, members of this committee could make names for themselves.
Ohio Republican Warren Davidson was one of those removed from the committee; he told Cleveland media he had been “looking forward” to participating and would “gladly rejoin” the committee if McCarthy relented, but it was Ohio Democrat Marcy Kaptur, still on the committee, who got the headline and the approving story.
Instead of this productive sort of headline, Representatives Matt Gaetz (R-FL), Marjorie Taylor Greene (R-GA), and Louie Gohmert (R-TX) staged an event in which they tried to visit the accused January 6 rioters at a Washington, D.C., jail. Refused entry, Gohmert told the press: “We’re in totalitarian, Marxist territory here. This is the way third-world people get treated.”
McCarthy and fellow Trump supporters are trying to get their own headlines by opposing new mask mandates as the Delta variant of coronavirus is gathering momentum across the country. On Tuesday, the attending physician for the United States Congress, Dr. Brian Monahan, reinstated the use of masks in the House of Representatives and recommended it in the smaller Senate. On Wednesday, Pelosi required the use of masks in the House, and reminded members that they would be fined for refusing to wear them. All of the Democrats in the House are vaccinated; it appears that only about half of House Republicans are.
Thursday, House Republicans launched a revolt against mask use. They are trying to adjourn the House rather than gather with masks. Chip Roy (R-TX), said “This institution is a sham. And we should adjourn and shut this place down.” Representatives Greene, Lauren Boebert (R-CO) and Andy Biggs (R-AZ), all maskless, gave Roy a standing ovation. Today, a group of House Republicans without masks posed for cameras as they tried to gain entrance to the Senate.
Consolidating around Trump after his November loss was always a gamble, but increasingly it looks like a precarious one. Just this week, the former president tried to sabotage the infrastructure deal, and 17 senators ignored him. In Texas, on Tuesday, Trump’s ability to swing races was tested and failed when the candidate he backed—even pumping a last-minute $100,000 into the race—lost.
McCarthy has promised to win in 2022 with culture wars rather than governing, and that looks like an increasingly weak bet. But make no mistake: the ace in his vest remains the voter suppression laws currently being enacted across the country.
Heather Cox Richardson is a Professor of History at Boston College. This post originally appeared at her Substack, Letters from an American.