Judge issues big rebuke of GOP effort to delegitimize Jan. 6 committee

One of the RNC’s claims was that the committee was invalid because it doesn’t contain members chosen by House Minority Leader Kevin McCarthy (R-Calif.). McCarthy’s five picks included members who supported efforts to question the election results. When House Speaker Nancy Pelosi (D-Calif.) rejected two of them, McCarthy withdrew them all. The committee wound up having only two Republicans, who were selected by Pelosi: Reps. Liz Cheney (R-Wyo.) and Adam Kinzinger (R-Ill.).

The RNC argued that this meant the committee failed to abide by its mandate, given that its authorizing resolution says it “shall” have 13 members. Judge Timothy Kelly said this was “not an unreasonable position.” But in rejecting it, he cited a case in which he sided with the Trump administration, saying “shall” shouldn’t necessarily be construed as “mandatory”:

Starting with the resolution’s text, as this Court observed in upholding former President Trump’s right to name his own acting Director of the Consumer Financial Protection Bureau, “although ‘shall’ is usually understood as mandatory,” the word is “a semantic mess” and is sometimes used “to mean ‘should,’ ‘will,’ or even ‘may.’ ” Thus, that the resolution states that Speaker Pelosi “shall” appoint thirteen members to the Select Committee is not conclusive as to whether thirteen members are required for it to lawfully operate.

Next, Kelly turned to a similar argument made by the RNC — that the authorizing resolution states that the committee “shall” appoint five members “after consultation with the minority leader.” He quickly dispatches with the idea that McCarthy wasn’t consulted, just because some of his picks were rejected.

“To ‘consult’ with Minority Leader McCarthy, all Speaker Pelosi had to do was ask for his ‘advice or opinion,’ ” Kelly writes, citing a legal dictionary. He added flatly: “There is no dispute that she did. That she did not accept all his recommendations, and that Minority Leader McCarthy then withdrew all his recommendations, does not mean that Speaker Pelosi failed to consult with him.”

The RNC also made a rather technical claim that the committee is not properly authorized because it doesn’t have a “ranking minority member,” as the authorizing resolution also requires. Cheney was named a “vice chair” of the committee after the GOP’s picks were withdrawn, and one of the rejected GOP picks, Rep. Jim Banks (R-Ind.), has even tried to claim he is actually, somehow, the ranking member.

But the judge essentially said this was a distinction without a difference. Cheney clearly has the most seniority of the panel’s two Republicans.

“True, for whatever reason the Select Committee did not give her — or anyone else — the formal title ‘ranking member,’” Kelly wrote. “But to the extent there is any uncertainty about whether she fits the bill, on this record the Court must defer to the Select Committee’s decision to treat Representative Cheney as the ranking minority member for consultation purposes.”

Finally comes a particularly strained argument — and one which the judge treated as such.

The RNC claimed that the committee’s stated purpose of investigating the Jan. 6 attack is actually a pretext for a political effort to harm Republicans. But in making that argument, it cited public comments from members of the committee that merely refer to delivering justice wherever it might lead (emphasis added by me):

It also identifies three tweets from Select Committee members: one from Chairman [Bennie G.] Thompson on the first anniversary of the January 6 attack reflecting that “[w]e have been working diligently to bring justice” to “the tragedy of Jan. 6” ; one from Representative [Adam B.] Schiff in November 2021 saying that “[w]e will expose those responsible for Jan 6” and “[n]o one is above the law”; and one from Representative [Jamie B.] Raskin in December 2021 observing that “[e]xec. privilege doesn’t cover criminal misconduct, like insur-rections or coups.” The RNC also references three public statements from Select Committee members: one from Representative Kinzinger about how “[w]e’ll be able to have out on the public record anything [the] Justice Department needs maybe in … pursuit of [a crime]” ; one from Chairman Thompson about how “we are pursuing evidence” leading to “former President Trump or anyone else”; and one from Representative Raskin about how neither attorney-client nor executive privilege “operate[s] to shield participants in a crime from an investigation into a crime.”

Kelly wrote that the evidence presented by the RNC — which also included staffing decisions — “does not come close to showing that the Select Committee’s proffered legislative purpose is merely a pretext.”

Kelly repeatedly notes that the committee has constrained its request for data from the RNC so that it’s sufficiently narrow.

In his summary of the committee’s valid legislative purpose, he acknowledges the importance of the matters at hand — something Republicans have argued isn’t worth the focus provided by the select committee:

… The Select Committee is hardly on an unconstrained “fishing expedition” into the RNC’s records. That two-month window is plainly relevant to its investigation into the causes of the January 6 attack. … As House Defendants explain, this information will give the Select Committee the context to understand how much attention and interest was generated by emails that asserted the election was fraudulent or stolen.

And the ruling, which allows the committee to access data related to the RNC’s mass emails suggesting that the 2020 election was illegitimate, could also open the door to yet more.

The judge’s ruling surely won’t stop the GOP from making a political argument that the committee is a fishing expedition — something the party set the stage for by withdrawing from the committee altogether — but it does mean that claim has now been rejected in at least one crucial context, and by a Trump appointee at that.