McCarthy’s testimony could also violate federal criminal law. For example, 18 U.S.C. Section 1505 provides that anyone who “hinders the proper and orderly exercise of investigative powers … by a chamber or a committee of one of the two chambers” will be prosecuted. Threatening corporations when cooperating with a legitimate request from a duly authorized House Committee certainly seems to pose problems under this and other obstructionist laws that apply to interference in a Congressional investigation.
Under normal circumstances, a person who made this type of threat could be investigated by the Justice Department. There is a complication here, however. The Constitution Speech and debate clause grants members of Congress immunity for “any speech or debate in either House”. It’s an open question whether such a threat – one on McCarthy’s official Twitter account – is covered.
This open question makes the need for an ethics committee investigation all the more important. The constitutional issue is part of the assessment that the committee should make to decide whether a criminal referral should be madealong with examining whether there may be other evidence of disability from McCarthy or his colleagues.
We can assume that McCarthy was aware of the ethical and legal risks of his behavior because he tried to adorn his threat with a fig leaf of legality. In his statement, it said that the compliance of the companies violated federal law. However, when pushed by the media, his office did not identify any law that would be violated. That’s because there aren’t any.
In fact, the exact opposite is true. Failure by companies to cooperate with the investigation would be a violation once Congress issues subpoenas. Companies now have an affirmative legal obligation to keep the records for the upcoming trial. McCarthy’s claims that legal compliance is illegal are Orwellian ambiguities.
To make sure there was no doubt about what was going on, McCarthy’s right flank was even less careful. On Fox’s Tucker-Carlson Show Representative Marjorie Taylor Greene said the quiet part loudly: “These telecommunications companies will be closed if they join. And that’s a promise.“Your words don’t just provide important context. They have been voiced entirely outside of Congress, are not protected from speech or debate, and should also be investigated by the ethics committee.
In addition to investigating whether ethics violations have occurred, the House Ethics Committee plays a critical role in determining whether a criminal referral is appropriate. Under House rule XI 3 (a) (3), he is entitled to such a transfer. It should investigate all the facts and circumstances in the case, interview McCarthy and others, gather documents and evidence, and determine whether a referral is appropriate. The committee has a responsibility to protect the credibility and integrity of the House from inappropriate behavior. This requires the McCarthy committee to investigate.
Even in the absence of a criminal referral, the committee has the power to hold McCarthy accountable. The committee can issue a letter of rejection or recommend a fine, reprimand, or recommendation to plenary other punishments including reprimand: “In the case of serious violations, a reprimand is appropriate, in the case of more serious violations a reprimand and in the most serious violations, the exclusion of a member.”
After all, we should focus not only on what McCarthy did wrong, but also on what the special committee investigating the January 6 uprising is doing right. This behavior by the minority leader is a signal that the panel is taking the right steps as it conducts a full investigation into the unprecedented American insurgent attack on the Capitol. The House Select Committee should be in full swing – as should the House Ethics Committee.