Today the House debates the Rules extracted from newly elected House Speaker Kevin McCarthy by the “deranged disruptors”—former Republican Speaker Newt Gingrich’s term.
It will be the first test for McCarthy after last week’s circus where he effectively traded away the authority of leadership—and the House’s ability to function—so he could acquire the post. The movie version might be titled, “Honey, I Shrunk the Congress.”
In the end, he chose ambition over law, order, and country.
Law
Politico reported Saturday on a key eleventh-hour McCarthy concession—adding language to the House Resolution establishing a new “select” subcommittee designed to “investigate the investigators” of January 6. The deal purported to give the subcommittee power to inquire into the Justice Department’s “ongoing criminal investigations.”
The obvious target is Attorney General Merrick Garland. He has assigned Special Counsel Jack Smith two investigations that former President Donald Trump’s allies detest: One into Trump’s role leading up to and on January 6; the other into his unlawful retaining of classified documents long after leaving office.
The expanded subcommittee authority is likely more set-up than serious mission. As former U.S. Attorney Joyce Vance tweeted, the subcommittee request may simply be the pretext to impeach Garland when he predictably declines to share detail about the investigations.
Garland will have precedent on his side. Two prior attorneys general have successfully resisted congressional inquiries into ongoing criminal inquiries, as former Rep. Brad Miller (D-NC) has written.
In 1941, Attorney General Robert H. Jackson—later to serve as chief prosecutor at Nuremberg and Associate Justice of the Supreme Court—rejected congressional requests for investigatory reports “arising out of . . . labor disputes [connected with] naval contracts.” Jackson told Congress, “Disclosure of the reports could . . . seriously prejudice law enforcement.”
In 1982, Reagan Attorney General William French Smith refused to provide Congress documents relating to an enforcement action involving the Environmental Protection Agency. Disclosure, he said, would raise “a substantial danger that congressional pressures will influence the course of the investigation.”
There’s a special conflict of interest in the current mix. Axios reports that the subcommittee will be chaired by Jim Jordan (R-OH). As he had phone conversations with Trump and his chief of staff, Mark Meadows, on January 6, including during the insurrection, Jordan himself is a potential witness in the DOJ investigation.
Rep. Andy Biggs (R-AZ), who is on the Judiciary Committee, could be named to the subcommittee. If so, his membership would raise a similar conflict. The January 6 committee referred him, along with Jordan, for defying its subpoenas, to the House Ethics Committee.
To any invasion of the separation of powers by the “select” subcommittee, expect a firm “No” from Garland echoing that of his predecessors. A court battle could ensue, but the Freedom Caucus performers may prefer the political theater of a frivolous impeachment and are unlikely to worry about the long-run erosion of impeachment as a serious institutional check.
It’s sure to get them on Fox News and to boost their fundraising.
Order
Saturday’s New York Times story on McCarthy’s concessions warned Americans to “brace for the likelihood of a Congress in perpetual disarray for the next two years.”
That probability arises out of changes to House rules to which McCarthy finally caved. They include allowing a single member to call for a vote to replace him and adding enough hard-right members to the Rules Committee to completely gum up the legislative works.
Regarding the snap vote of no-confidence in the Speaker, Republicans argue it’s no big deal, as that was the rule until Nancy Pelosi changed the threshold to 51% in 2019. A simple reality, however, led to Pelosi raising the threshold. She recognized the danger that we’ve just seen—the legislative process could be brought to a standstill through serial votes, triggered by a single member, to replace the Speaker.
Nor was this a matter of clairvoyance on Pelosi’s part. Then-Freedom Caucus chair Mark Meadows (R-NC) had used the motion to vacate in 2015 to destabilize Speaker John Boehner (R-OH).
Referring to last week’s congressional disarray, Rep. Don Bacon (R-NE) asked how we would “like to do this every week?”
Friday also featured a snapshot of possible physical disorder to come—Rep. Mike Rogers (R-AL) had to be restrained from attacking Rep. Matt Gaetz (R-FL) after Gaetz voted “present’ instead of voting for McCarthy.
History buffs may recall pro-slavery Senator Preston Brooks’s (D-SC) pre-Civil War Senate-floor beating of anti-slavery Senator Charles Sumner (R-MA) with a gold-tipped cane.
They, at least, were members of opposing parties.
Country
On Saturday, the Wall Street Journal reported that McCarthy committed to linking severe spending cuts to any raising of the debt ceiling when that issue arises in the coming months. That would almost guarantee a repeat of the US credit default crisis into which the Tea Party threw the country in 2011.
This time the radicals might take us over the brink.
Similarly, with radical Republicans focused on cutting Social Security benefits in the next budget, their attempts to shut down government will likely multiply like rabbits in April. The well-being of seniors and the country be damned.
The faint silver lining in all of this is that the broader public is unlikely to stand for it, whether in 2024 or before. The voices of sensible Americans, particularly in the swing districts that elected Republican moderates, will be vital.
Expect democracy to be tested in the next two years. It will be up to all of us to ensure that it passes the test that Kevin McCarthy failed.
