Will the Jan. 6 committee subpoena a sitting member of Congress?

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Rep. Scott Perry, R-Pa., is the latest to say he will not comply with the House Jan. 6 Committee's request to appear before the committee and provide records for its investigation, leaving the committee with a choice: move on or issue a subpoena to a sitting member of Congress.

Committee Chairman Rep. Bennie Thompson, D-Miss., told the Washington Post in July that he has "no reluctance to subpoena" his fellow representatives, but it is unclear whether such an action would be legally enforceable.

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"I don’t know what the precedent is, to be honest," committee member Rep. Adam Schiff, D-Calif., told the Post at the time. "Obviously we will have to look into all those questions."

Stanley Brand, former House counsel from 1976 to 1983, told the newspaper that he could not think of any instance "where members of Congress were subpoenaed to an oversight hearing."

Rep. Scott Perry, R-Pa., joined by members of the House Freedom Caucus, speaks at a news conference on the infrastructure bill outside the Capitol Building Aug. 23, 2021, in Washington.   (Kevin Dietsch/Getty Images)

Despite the lack of precedent, University of Baltimore law professor Kimberly Wehle believes there is "a strong argument that the Constitution allows a court to order compliance."

In a piece she wrote for The Atlantic, Wehle pointed to Supreme Court precedent regarding the House’s power to gather information for legislative purposes, citing 2020's Trump v. Mazars, where House committee subpoenas for then-President Donald Trump’s financial records were upheld.

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Wehle did note that an argument against allowing subpoenas on current members of Congress could rely on the "speech or debate" clause of the Constitution. That clause says that "for any Speech or Debate in either House," representatives and senators "shall not be questioned in any other Place."

House Jan. 6 Committee Chairman Bennie Thompson of Mississippi.

This, Wehle said, could mean that members of Congress can be questioned by Congress in Congress, but that such inquiries cannot extend beyond the Capitol and into the courts.

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The committee has yet to issue a subpoena to any current member of Congress, but it has aggressively pursued testimony and records from former Trump administration officials, including Steve Bannon and former White House Chief of Staff Mark Meadows. Both Bannon and Meadows refused to comply, although Meadows had initially been cooperative. 

Steve Bannon, left, former advisor to President Trump, and his attorney David Schoen address the media after an appearance at the E. Barrett Prettyman Federal Courthouse on contempt of Congress charges for failing to comply with a subpoena from the committee investigating the January 6th riot, on Monday, Nov. 15, 2021.  (Tom Williams/CQ-Roll Call, Inc via Getty Images)

The House recommended that the Justice Department bring criminal contempt charges against both men. So far, the DOJ has indicted Bannon but has not taken action against Meadows, who has cited executive privilege for not turning over all of the information the committee requested.