By Mark Tapscott
A subpoena issued by the House Select Committee to Investigate the January 6 Attack on the United States Capitol seeking private cell phone information from Verizon is not valid for at least five reasons, according to a lawsuit filed earlier this week in federal court by a noted constitutional law professor.
The suit, filed on Dec. 14 by Professor John Eastman in the U.S. District Court for the District of Columbia, asks that the select committee’s subpoena to Verizon for his “phone records, text messages, contact lists, etc. for the period of November 1, 2020 to January 31, 2021,” be declared invalid.
Eastman’s action is one of several recently filed in federal court that could result in a court ruling that forces Speaker of the House Nancy Pelosi and other Democratic leaders to either reorganize and relaunch the select committee or shut it down completely.
Eastman claimed the subpoena to Verizon is invalid for the following reasons:
- “First, public statements by J6 Committee members make clear that the Committee is attempting to exercise a law enforcement function, rather than genuine legislative activity. The United States Congress has no power to issue subpoenas for law enforcement purposes.
- “Second, the subpoena was issued in violation of House Rules and the J6 Committee’s own authorizing resolution … the Committee’s lack of validly appointed minority members or a validly appointed “ranking minority member” makes such compliance impossible. A subpoena issued in violation of applicable House Rules is invalid.
- “Third, the subpoena violates the Fourth Amendment. Dr. Eastman has a reasonable expectation of privacy in the private cellphone information which the Committee now seeks to access without a search warrant.
- “Fourth, the subpoena violates the First Amendment. The subpoena seeks detailed information on Dr. Eastman’s protected First Amendment activity. Allowing a highly partisan congressional committee to invade the First Amendment activity of a political opponent would have a chilling effect on free speech.
- “Finally, the subpoena infringes attorney client privilege. In addition to his academic work, Dr. Eastman is engaged in the practice of law representing clients. The subpoena makes no provision for protecting attorney client privileged information.”
Eastman, who describes himself in the suit as “a political conservative who supported former President Donald Trump, which puts him at odds with the Committee’s highly partisan membership,” is a former Dean of the Chapman University Law School and professor of Constitutional Law, Legal History, and Property.
Separately, the select committee said it also subpoenaed Eastman for deposition because he “appeared to have been instrumental in advising President Trump that Vice President [Mike] Pence could determine which electors were recognized on January 6, a view that many of those who attacked the Capitol also shared.”
Also filing suit earlier this week against the select committee were four political consultants who helped stage the peaceful January 6 White House rally in support of Trump that preceded the riot later that day at the Capitol.
The four include Justin Caporale, described as the “Project Manager,” Tim Unes, the founder of Event Strategies, Megan Powers, listed as “Operations Manager,” and Maggie Mulvaney, the “VIP Lead” for the rally.
In their suit, the four contend that they are “private citizens who were not involved in any federal government activities or programs. They have only one apparent connection to the matter Congress claims to be investigating: They served as vendors to help staff a peaceful, lawful, orderly, and patriotic assembly to promote First Amendment-protected speech.
“Despite this, the Plaintiffs voluntarily sat for lengthy interviews and gave thousands of documents to Congressional investigators. The Plaintiffs answered every single question about what happened at the event, who spoke, who the Plaintiffs spoke with, and when. If Congress wanted to know anything more about the Plaintiffs’ brief involvement with the events it is allegedly investigating, it needed only have asked.
“Instead, Congress rewarded Plaintiffs for their cooperation by pivoting to Defendant Verizon Wireless, their telecommunications carrier, to indiscriminately demand detailed information about their accounts, contacts, personal and political associates, and physical locations. The Subpoenas covered a three-month period that greatly exceeds the 10-day window of time about which Congress questioned the Plaintiffs.”
Like Chapman, the four ask the court to issue a judgement that the subpoena to Verizon is invalid because it “was not issued by a validly constituted committee; is not pertinent to the matter Congress is purporting to investigate; does not pursue a legislative purpose; violates the Plaintiffs’ First and Fourth Amendment rights; and violates the Stored Communications Act, 18 U.S.C. § 2701, et seq.”
The arguments cited in the suits filed by the four rally organizers and the constitutional law professor mirror those presented to the same federal court in a Dec. 8 filing by former White House Chief of Staff Mark Meadows, who is also a former member of the House of Representatives, that cited him for contempt Dec. 14.
In addition to claiming subpoenas issued by the select committee are invalid, all of the suits argue that the panel itself is invalid because it fails to operate in accordance with H.R. 503, which created it.
The suits further argue that the select committee is failing to fulfill a “valid legislative purpose” consistent with the constitutional authorities of Congress.
Meadows frames the argument in this manner: “Congress has no freestanding power to issue subpoenas. Instead, its investigative powers are ancillary to its legislative authority. Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2031 (2020).
“Because of this tie between the investigative and legislative powers, Congress may only issue subpoenas that serve a valid legislative purpose. Law enforcement and the punishment of perceived legal wrongs are not valid legislative purposes. To the extent Congress seeks to utilize subpoenas to investigate and punish perceived criminal wrongdoing, it unconstitutionally intrudes on the prerogatives of the Executive Branch.”
The argument continues, noting that “the Select Committee has failed to identify any legislative purpose served by the Meadows Subpoena. It has not considered any draft legislation, nor has it provided any explanation for why its requests to Mr. Meadows would further any valid legislative end …
“The Select Committee’s authorizing resolution also fails to identify its legislative purpose. It is vague to the point of meaninglessness, authorizing the Select Committee to ‘investigate the facts, circumstances, and causes relating to the domestic terrorist attack on the Capitol, including facts and circumstances relating to … entities of the public and private sector as determined relevant by the Select Committee for such investigation.’”
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