With An Obscure Committee, Speaker McCarthy Can Restore The House’s Institutional Integrity
One of House Speaker Kevin McCarthy’s primary goals, having regained leadership of the House, must be to reinstate the institutional integrity that was honored only in the breach over and over again by Speaker Nancy Pelosi.
Long-standing fundamental House rules and protocols repeatedly were violated under Pelosi, for the single purpose of pursuing a partisan political agenda at the expense of historically honored principles. The formation of the House Select Committee to Investigate the Jan. 6 Attack on the Capitol and its indisputable perversion of important House rules highlight the issue. The rules that were violated allowed the committee to abuse the subpoena process and deny subpoenaed witnesses basic protections the rules were intended to provide. This must be corrected immediately.
There is one mechanism readily available to the speaker to restore order and respect for the rules. It is called the Bipartisan Legal Advisory Group (“BLAG”).
The BLAG was created in 1993 by a Democrat-controlled House, over the objection of a majority of Republicans in the House. It is a body comprised of five members of the House leadership, three majority party members and two minority party members, that speaks for the House in directing litigation in which the BLAG perceives the House to have a direct interest.
Republicans who opposed the formation of BLAG argued that the entire House should vote before a legal position that purports to speak for the House is adopted. The Democrats prevailed, and now by House rule, once BLAG members vote to direct the House general counsel to participate in litigation and take a position, even if the vote is 3-2, its position speaks for the entire House.
The J6 Committee’s Actions Highlight Partisan Abuse of the Rules
McCarthy characterized the degree to which the Jan. 6 Committee flagrantly violated long-entrenched House protocol and rules to support its partisan political agenda as “unprecedented” and “an egregious abuse of power.” However, when the rules violations have been challenged, courts have concluded that they were bound by the House’s own interpretation and application of its rules and had to yield to the BLAG as the official advocacy voice of the House. Since BLAG endorsed the Jan. 6 Committee’s actions by a 3-2 vote, their rules violations were permitted with impunity, notwithstanding the express language of the House rules.
McCarthy must now convene the BLAG, as he has the full authority to do, to reverse its partisan political perversion by Pelosi and company, and to return the House to a body that at least honors its own rules, without regard to a politically expedient agenda of the day.
The following examples of the Jan. 6 Committee’s abuse of House protocol and rules demonstrate why we should care and why McCarthy must act now.
First, the House resolution creating the Jan. 6 Committee called for it to be comprised of 13 members, five of whom were to be selected in consultation with then-House Minority Leader McCarthy. Despite McCarthy’s public protestations, Pelosi summarily rejected McCarthy’s selections for the committee. McCarthy then refused to participate in a process that violated the rules, and the committee went forward with nine members instead of the 13 provided for in the resolution creating it. Pelosi’s partisan political selections for the committee undermined its integrity.
Second, the committee abused its authority regarding witnesses called to testify, in violation of the resolution establishing it and House rules and regulations. These important rules require consultation between a committee’s chair and its ranking minority member before a witness can be subpoenaed to give sworn testimony. Under long-standing party rules and House protocol, a committee’s ranking minority member is chosen by the House minority leader. Her or his purpose is to protect a witness from abusive partisan subpoenas and from abusive questioning during a deposition.
The Jan. 6 Committee had no ranking minority member as a matter of law. Some have tried to claim Rep. Liz Cheney, R-Wyo., was the ranking minority member, but this is expressly contradicted by the unequivocal statement by Committee Chair Bennie Thompson, D-Miss., that Cheney definitely was not the ranking minority member (as you can see at the 16:37 mark at the committee’s first hearing). The committee had none.
Under House rules and the Jan. 6 Committee resolution, without a ranking minority member, the committee had no valid subpoena authority. The rules deem the protection of subpoenaed witnesses to be so important that unless each witness called to testify is given a copy of Rule 3(b), which explains the committee’s deposition authority, the committee cannot compel a witness to testify. The Jan. 6 Committee failed to give key witnesses a copy of the rule.
The BLAG Process Must Not Be Abused for Partisan Political Purposes
In order to formally endorse the committee’s clear violations of express House rules and established protocol, Pelosi convened the BLAG and secured a 3-2 vote along strictly partisan lines, authorizing House counsel to file a brief in federal court in Washington, D.C., advising the court that the House’s official position to which the court must yield was that the committee must be deemed to have fully complied with the rules, notwithstanding the actual language of the rules, because the Democratic Party-controlled BLAG so voted, albeit 3-2 on partisan party lines.
The text of the rules and historical House protocol were rendered meaningless. Pelosi and her cronies successfully argued, through the BLAG, that courts must yield to what the political party in power at the time in the House says House rules mean, regardless of the harm caused to the rights of individual Americans and to the institutional integrity of this constitutionally critical branch of government. The courts so far have yielded to that BLAG position.
McCarthy Can and Must Restore Institutional Integrity
McCarthy has spoken loudly and in compelling terms about the grave damage done to the integrity of the House by the composition of the Jan. 6 Committee, its disregard for the rules and protocol, and the damage the BLAG’s actions did in arguing in favor of the committee’s perversion of the rules and protocol.
McCarthy has it well within his power to easily remedy the matter and restore the integrity of House rules and the institution itself. This depends on having rules and protocols that are applied evenly and consistently and are not violated with impunity simply to serve a partisan political agenda.
He can and must convene the BLAG and make it clear through that legal voice of the House that the earlier 3-2 BLAG vote endorsing the perversion of the rules and protocol no longer is valid and cannot continue to speak for the House. The BLAG must identify the rules and protocol violations committed by the Jan. 6 Committee about which McCarthy so adamantly complained, and the BLAG must set the record straight as to the procedural safeguards that the rules provide with respect to committee actions.
Committees must not be allowed to run roughshod over the rights of Americans called to testify. Moreover, every one of us has a direct stake in the integrity of committee investigations on important matters of public interest. The House must ensure that the institutional integrity of the House has been restored and that our individual rights matter and are not to be violated by our elected representatives to serve their partisan political purposes. Only then can we be true to the fundamental American principle of a government of the people, by the people, and for the people.
David Schoen is a civil rights and criminal defense lawyer based in Montgomery, Alabama. He represents Steve Bannon in the appeal of his contempt of Congress conviction and served as lead counsel for former President Donald Trump in his second impeachment trial.
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