I’m speaking of Kevin McCarthy, of course:
The congressional committee spearheading an inquiry into January’s Capitol riot has asked 35 technology firms and 15 social media companies to preserve the phone and document records of 11 far-right members of Congress—and Republican Rep. Kevin McCarthy (CA) isn’t happy about it. On Tuesday, the House minority leader took to Twitter to threaten companies who might be tempted to cooperate. “If these companies comply with the Democrat order to turn over private information, they are in violation of federal law and subject to losing their ability to operate in the United States,” he wrote, failing to cite which law he meant.
McCarthy’s protestations were “typical of somebody who may or may not have been involved in Jan. 6,” the chairman of the committee told The New York Times in an interview, “and doesn’t want that information to become public.” The panel has not yet asked to preserve McCarthy’s records. But the unholy conglomerate of Republicans whose records the committee is interested in reviewing does include some of the usual marquee names: Reps. Matt Gaetz (R-FL), Madison Cawthorn (R-NC), Majorie Taylor Greene (R-GA), Jim Jordan (R-OH), and Scott Perry (R-PA), among others. These members of Congress, chummy Trump confidantes, were all involved in some way in the Stop the Steal rally that preceded the riot, whether attending, organizing, or promoting it.
Charlie Sykes newletter has this on the subject:
As you know, on Tuesday, Minority Leader Kevin McCarthy threatened retaliation against telecom companies who complied with requests for information from the House Select January 6 Committee. If they cooperated with the investigation, McCarthy warned, “a Republican majority will not forget.”
Since we are deep into legal analysis this morning, I wanted to share an email from a savvy reader:
Charlie – I was a high level federal prosecutor for a long time and I head the white collar practice at an AMLAW100 firm. What the minority leader did looks to me to be a crime – obstructing the investigation of a congressional committee. See 18 USC 1505 and 1515.
Section 1505 of Title 18, United States Code, as amended by the Victim and Witness Protection Act of 1982, forbids anyone from corruptly, or by threats of force or by any threatening communication, influencing, obstructing, or impeding any pending proceeding before a department or agency of the United States, or Congress. In 1996 Congress enacted a clarifying amendment to 18 U.S.C. § 1515, which defines the term “corruptly” as used in section 1505 to mean “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” False Statements Accountability Act of 1996, Pub. L. No. 104-292, §3, 110 Stat. 3459, 3460.
And see this for part of the DOJ’s own manual on this subject.
The omnibus clause of 18 U.S.C. § 1505 parallels its counterpart in 18 U.S.C. § 1503 in language and purpose, and most of the law construing the latter is applicable to the former. Generally, a defendant may be found guilty under section 1505 if the government establishes that: (1) there was a proceeding pending before a department or agency of the United States; (2) the defendant knew of or had a reasonably founded belief that the proceeding was pending; and (3) the defendant corruptly endeavored to influence, obstruct, or impede the due and proper administration of the law under which the proceeding was pending. United States v. Price, 951 F.2d 1028, 1030-31 (9th Cir. 1991); United States v. Sprecher, 783 F. Supp. 133, 163 (S.D.N.Y. 1992).
I am not seeing an easy out for McCarthy on this. I assume he will say his intention is not corrupt, but corrupt is interpreted to mean deliberately counseling witnesses to withhold documents without a good faith privilege, and instead to block the committee from getting the requested information. McCarthy is a bit of a lunk, and he may well have stepped in it here. I’m sure Merrick Garland has noticed.
Maybe Kim Wehle has a take on this.
[Name withheld]
I thought that was a good suggestion, so I forwarded the email to our resident constitutional scholar. Wehle responded:
Charlie,
I agree and Garland needs to step up soon. The inaction and unaccountability breeds more criminal activity.
Kim
I wish I felt confident that this would happen. But I don’t. It’s pretty clear that we have decided Republicans are allowed to obstruct justice, particularly when it comes to blatant witness tampering and intimidation. Donald Trump showed that. So I doubt that McCarthy will be held responsible.
The good news is that the first time a Democrat tries anything close to this the law will come down on them like a ton of bricks in order to show regular people they can’t get away with doing it. They have to make an example of someone.