Page:Introductory Material to the Final Report of the Select Committee to Investigate the January 6th Attack on the United States Capitol.pdf/90

 to comply with the subpoenas issued to them to the Ethics Committee for further action. To be clear, this referral is only for failure to comply with lawfully issued subpoenas.

The Rules of the House of Representatives make clear that their willful noncompliance violates multiple standards of conduct and subjects them to discipline. Willful non-compliance with compulsory congressional committee subpoenas by House Members violates the spirit and letter of House Rule XXIII, Clause 1, which requires House Members to conduct themselves “at all times in a manner that shall reflect creditably on the House.” As a previous version of the House Ethics Manual explained, this catchall provision encompasses “‘flagrant’ violations of the law that reflect on ‘Congress as a whole,’ and that might otherwise go unpunished.” The subpoenaed House Members’ refusal to comply with their subpoena obligations satisfies these criteria. A House Member’s willful failure to comply with a congressional subpoena also reflects discredit on Congress. If left unpunished, such behavior undermines Congress’s longstanding power to investigate in support of its lawmaking authority and suggests that Members of Congress may disregard legal obligations that apply to ordinary citizens.

For these reasons, the Select Committee refers Leader McCarthy and Representatives Jordan, Perry, and Biggs for sanction by the House Ethics Committee for failure to comply with subpoenas. The Committee also believes that each of these individuals, along with other Members who attended the December 21st planning meeting with President Trump at the White House, should be questioned in a public forum about their advance knowledge of and role in President Trump’s plan to prevent the peaceful transition of power.

More than 30 witnesses before the Select Committee exercised their Fifth Amendment privilege against self-incrimination and refused on that basis to provide testimony. They included individuals central to the investigation, such as John Eastman, Jeffrey Clark, Roger Stone, Michael Flynn, Kenneth Chesebro, and others. The law allows a civil litigant to rely upon an “adverse inference” when a witness invokes the Fifth Amendment. “[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions. . ..” The Committee has not chosen to rely on any such inference in this Report or in its hearings.

We do note that certain witness assertions of the Fifth Amendment were particularly troubling, including this: Vice Chair Cheney: General Flynn, do you believe the violence on January 6th was justified?

Counsel for the Witness: Can I get clarification, is that a moral question or are you asking a legal question?

Vice Chair Cheney: I'm asking both.

General Flynn: The Fifth.