GOP leader tells court Bannon contempt charges won’t stand

McCarthy’s brief, filed jointly with House GOP Whip Steve Scalise, is an extraordinary move by minority lawmakers to take on the majority in court — specifically. And it comes as McCarthy himself faces a subpoena from the select committee requiring him to testify on May 31. He has yet to say whether he will cooperate with the panel, but his legal argument suggests he also views the subpoena itself as invalid.

Republican leaders say they decided to file the brief in response to House Democrats’ own decision to submit their own brief in Bannon’s case earlier this month. Pelosi touted the record in a May 10 press release, saying the House was defending itself against Bannon’s claim that the select committee was improperly constituted.

“[Bannon]Attacks on the validity of the subpoena are deeply flawed: they ignore the deference a court owes the House regarding the meaning and application of its own rules and procedures,” the House attorney wrote. Doug Letter on file.

At the heart of the dispute is the language of the resolution that created the Jan. 6 select committee last year. According to the resolution, Pelosi “will appoint 13 members to the select committee, 5 of whom will be appointed after consultation with [McCarthy].”

Last July, Pelosi rejected two of McCarthy’s picks for the panel — Reps. Jim Banks (R-Ind.) and Jim Jordan (R-Ohio) — while agreeing to seat his other three selections. In protest, however, McCarthy withdrew his three remaining picks and boycotted the committee, a step Democrats described as “the minority leader’s failure to continue the consultation process.”

Pelosi cited McCarthy’s decision as the reason the panel is currently operating with just nine members, instead of the 13 envisioned in the resolution. And Letter, who represents Pelosi and the select committee, argued that it would be untenable for a minority party to be able to obstruct a committee simply by refusing to participate.

Pelosi, Letter argued in separate court cases, correctly interpreted House rules to allow the select committee to operate without its full slate of members, citing a GOP-led select committee that made a similar decision following of Hurricane Katrina. .

Three federal judges adopted Letter’s position, arguing that the select committee is properly constituted, despite disagreement over its composition. Ignoring the House’s interpretation of its own rules — especially when the full House has repeatedly endorsed the committee’s work by voting to scorn figures like Bannon — would be inappropriate, the justices argued.

“The fact that the resolution states that Chairman Pelosi ‘shall’ appoint thirteen members to the select committee is inconclusive as to whether thirteen members are necessary for it to function legally,” wrote Judge Timothy Kelly, a person nominated by Trump, in a decision confirming the selection. the legitimacy of the committee earlier this month.

Former President Donald Trump’s allies have long argued that the select committee is malfunctioning because it has fewer than 13 members and lacks a “ranking member” appointed by the GOP leader. In dozens of lawsuits, Trump allies have cited these procedural arguments as reasons for opposing compliance with select committee subpoenas.

Democrats, however, say Rep. Liz Cheney (R-Wyo) effectively served as a committee member even though she was nominated by Pelosi. Representative Adam Kinzinger of Illinois, the only other Republican on the panel, was also chosen by Pelosi.

The McCarthy-Scalise brief was filed Tuesday by attorneys Stan Woodward and Stan Brand, himself a former House general counsel. Brand also represents longtime Trump adviser Dan Scavino, who was scorned by the House last month for refusing to comply with a Jan. 6 subpoena.

The attorneys say McCarthy and Scalise released their filing as a result of “institutional concern for the prerogatives of the House.” They argue that Letter’s brief in the Bannon case “misrepresents the law and misleads the Court (and the public) regarding any legal interest of the House in a criminal contempt of Congress suit.”

“It is now for the judiciary to oversee the determination of guilt and not for the House, including the minority leadership,” they write.

In their brief, McCarthy and Scalise also drew attention to a little-known group of house leaders known as the Bipartisan Legal Advisory Group, or BLAG. The BLAG – which consists of Pelosi, House Majority Leader Steny Hoyer, House Majority Whip James Clyburn, as well as McCarthy and Scalise – allow decisions by House lawyers to get involved in disputes.

McCarthy and Scalise say they voted against the decision to allow Letter to file a brief in the Bannon case, but were outvoted 3-2. BLAG decisions were once routinely unanimous, but have more recently split along party lines, the GOP leaders note, citing a series of cases from 2019 and 2020 in which McCarthy and Scalise dissented.

One case they didn’t note was Rep. Louie Gohmert’s December 2020 lawsuit against then-Vice President Mike Pence, part of an effort to help keep Trump in power. The House filed a brief in that case claiming that Gohmert’s trial was an attempt to subvert the will of American voters. McCarthy and Scalise dissented.


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