Any low-information centrist passively watching the January 6 Select Committee’s work up to now should have felt a jolt to his spine after seeing the latest round of congressional subpoenas.
Late last month, far-right podcast personalities Nicholas Fuentes and Patrick Casey—individuals in no way involved with the smattering of crimes committed that day (one of them wasn’t even there)—received disclosure demands for a range of private and otherwise questionably relevant records, including encrypted messages and bank statements. Relying on reports from those paragons of ethical journalism at the Daily Beast and the Anti-Defamation League, the demand letters vaguely claim that the pair’s “election protest activities” put them somehow “within the scope” of the committee’s investigation, therefore, making them subject to its deposition and disclosure whims.
Of course, if Fuentes and Casey were truly under suspicion for organizing an “insurrection” on January 6, the FBI would have filed charges already. But unfortunately, this doesn’t count for much when it comes to Congress’ sweeping, inexhaustible, and arguably extraconstitutional investigatory powers.
As courts have confirmed over the years (with disappointingly little fanfare), manifestations of Congress’ investigatory power like the January 6 Committee may demand, under threat of criminal contempt charges, just about whatever they want from whomever they want, and there’s little to no constitutional protections for even the most arbitrarily targeted.
These subpoenas can be barefaced attempts to bully political dissidents or embarrass an opposing party in an election year, yet courts almost never get involved (citing them as “non-justiciable political questions”). Subpoenaed targets simply have to answer whatever bipartisan demands are imposed on them.
As Trump advisor Taylor Budowich asked, as part of his objection to the January 6 Committee’s demand that he hand over his bank records (which his bank did without telling him), “[A]re there any limitations preventing a partisan Congress from infringing on the rights and privacies of American citizens?”
No, there are not. Budowich lost his challenge.
But given Congress’ legislative power doesn’t quite work so well these days, might such committees become permanent fixtures in our political landscape? After all, what else can elected officials hang their hats on come campaign season? What can they tell the most dedicated activists in their districts when demanded to “do something” about the other side?
The little recourse Fuentes, Casey, Budowich, or any other U.S. citizen has before this and future committees leaves the following question clamoring to be answered: Do contemporary congresses deserve such power, or should it be pared back?
Brown Scares: Then and Now
Using Congress’ sweeping investigatory power to harass dissidents and embarrass political opponents goes way back. Franklin Roosevelt accused members of using investigative committee work to influence elections while Andrew W. Mellon made similar protests, arguing that “government by investigation is not government.”
In his authoritative 1968 work on the history of congressional investigatory powers, The Committee, Walter Goodman observed that as this power into its own during the interwar years, “committee members might yield to a craving for personal publicity, might make careless charges or engage in common politicking.” Obviously, this sounds familiar.
Late historian Leo Ribuffo was perhaps the expert on the little-remembered wave of anti-right-wing “subversion” that took place under Franklin D. Roosevelt’s administration during the 1930s and ’40s. The “Brown Scare” as he termed it—a reference to the Brownshirts in Weimar and Nazi Germany to be contrasted with the “Red Scare”—carried all the hallmarks of today’s fearmongering political culture over “domestic terrorism.” As Ribuffo tells it, not just “extremists,” but well-known conservatives were surveilled with loud calls to restrict “the right of native ‘fascist’ agitators to speak, publish, and assemble.”
Other Brown Scares noted by historians include one in the early ’60s (engulfing the John Birch Society, Senator Barry Goldwater, and the libertarian Volker Fund) and one in the 1990s (the FBI’s militia craze). As Reason’s Jesse Walker wrote some years back recalling Ribuffo’s work, these scares were intended to “exaggerate the threats at hand and obscure the distinctions between genuinely violent plotters, radical but peaceful activists, and members of the mainstream.”
Again, sound familiar?
The chief vehicle for stoking the original Brown Scare was an ad hoc House committee created by resolution, just like the January 6 Committee. It was called the House Committee on Un-American Activities, the first iteration of McCarthy’s “interrogation” panel that’s become so imprinted on the minds of the American public through TV documentaries, textbooks, and so forth.
The congressman responsible for getting it off the ground, Democrat Samuel Dickstein of New York, devoted much of his political career trying to root out the “scourge of Nazi elements” within the country. Unfortunately for Dickstein, there weren’t any—none, at least, among certain pro-German associations and fraternal orders (all of which he badged as vicious Nazis).
As Goodman writes: “It was difficult in a free country to pass laws against individuals joining together in Teutonic fellowship to drink beer and rail at Jews, but nothing in the Constitution prohibited investigating them.” In other words, if a particularly driven lawmaker feels restrained by the Constitution from legislating against people or ideas he doesn’t like, he can exercise investigatory power instead.
Like so many fevered progressive congressmen and commentators today, Dickstein was an obsessive. As Goodman tells it, he “capitalized untiringly on every incident and every fear.” With little or no evidence, Dickstein during House hearings inserted hundreds of suspect names, firms, and organizations into the Congressional Record. When one congressman produced affidavits from six people in St. Louis named by Dickstein, swearing they had never been Nazis, he declined even to place their denials in the record, stating, “If out of these hundreds of names that I have buttonholed as fascists and Nazis or whatever I have called them, and only six filed a protest, I think I have done a pretty good job.”
We clearly see this same kind of fevered energy today. But back then, at least Congress could deliberate, negotiate, and pass legislation in addition to this kind of posturing. Considering legislative power has all but ground to a halt in Congress, we should expect Democrats to invoke their investigative powers with more frequency, vigor, and less propriety.
The Brown Scare reached its apogee with Roosevelt’s insistence that his supporters start seeing some prosecutions. Although reticent, the Justice Department brought a raft of sedition charges against dozens of far-right, mostly female Christian commentators and radio show personalities. The indictments, which included the charges of “counseling insubordination among the military” and belonging to a “conspiratorial Nazi movement,” would be expanded twice before being dismissed by a federal judge years after being brought. Roosevelt’s attorney general, Francis Biddle, later admitted the proceedings were a “dreary farce”—and as defense counsel stated: “[T]here was more propaganda in the indictment than in the defendants’ publications.”
According to Ribuffo, what the trial really revealed was Roosevelt’s desire to silence critics of his administration and target unpopular activists. A bipartisan group of senators also voiced the concern that prosecuting such minor figures was really an attempt to intimidate Roosevelt’s congressional opponents. Writes Christine Erickson, “the sedition trials gave a governmental stamp of approval for targeting ‘unpopular dissidents’ who disagreed with the political status quo, thereby helping set the stage of the McCarthy witch-hunt.”
The J6 Committee’s Expansive Powers
That the January 6 Committee’s own investigatory power is being misused (as well as Biden’s powers, for that matter), therefore, shouldn’t surprise. After all, such powers are vast.
As Budowich acknowledged in his statements to the media, there isn’t much in terms of constitutional protections when one is targeted by a congressional subpoena. If the target feels overly burdened by the disclosure demand or that his or her rights against unreasonable search and seizure are violated, it matters little. By a mere bare-majority vote, the subpoenaing chamber can compel production anyway—first by a civil enforcement order, then by a contempt citation.
And as the Congressional Research Service notes, the courts have been reluctant to apply the Fourth Amendment’s protections (as well as others) against unreasonable searches by committees, deeming the area generally outside its jurisdiction. In other words, Congress is essentially free to go on a fishing expedition.
Same for the type of documents sought. Neither the Trade Secrets Act, the Privacy Act nor the Freedom of Information Act—the latter of which generally prohibits the government from disclosing personal records and personal identifiers of third parties—applies to congressional subpoenas. And, yes, private financial records are also fair game.
Although court-like, committees are also not constrained by traditional rules of judicial proceedings. This means any records traditionally subject to attorney-client or work-product privilege may also be demanded. And without traditional rules of evidence, there is no requirement for sealing sensitive information; it can be published to anyone without any privacy restrictions. So, for instance, if the January 6 Committee obtained a member-list or even text-message conversations between Nick Fuentes and his parents or friends, some committee member or staffer could easily provide the information to the Daily Beasts of the world without consequence.
Capping this off is the all-but-neutered requirement that committee inquiries and actions be formed with a legislative purpose. Naturally, such wide powers should at least be guided by a legitimate purpose. Previously, for instance, Congress’ investigatory powers were used in response to government scandals, such as senators making clandestine stock trades or the Iran-Contra affair; instances where the transgressions were obvious, identifiable, and solvable.
For example, when Congress demanded records from classified-ad website Backpage.com over how it screened out sex trafficking, investigators had a clear goal in mind: strengthening existing laws against sex trafficking. Here, the legislative purpose is what exactly? It’s legal to make claims against an election’s legitimacy (Democrats know this very well) just as it is to fund an advocacy campaign making the same claim. Yes, it is unlawful to assault police, but there is no legal lacuna here.
Further, none of the eight previous assaults on federal buildings, including the Capitol, led to Congress creating an investigatory committee (despite each being far more violent). The same goes for past instances of elected officials threatening to block the certification of electoral votes, as Democrats did in 2000.
Although the purpose-requirement was once acknowledged by the courts at the turn of the century, succeeding case law has long since eviscerated it, making it barely a justiciable question anymore. As a result, committee subpoenas can be extremely broad and invasive.
In their legal filings challenging the legitimacy of the committee, Budowich as well as Steven Miller’s legal group, America First Legal, employ with some rhetorical flourish the terms “partisan Congress” and “political faction” when referring to the January 6 panel. They inadvertently make an important point here.
In defending Congress’ sweeping investigatory powers in the 1920s, Justice Frankfurter wrote rather quaintly in The New Republic that the “safeguards against abuse and folly are to be looked for in the forces of responsibility which are operating from within Congress.” He added that in addition to Congress, such safeguards depend “on the press and the good sense of the people to keep such a large power from degenerating into partisan advantage.” If such sentiment doesn’t engender a strong sense of security today, you can be forgiven.
The public’s approval of Congress is far lower today than it was even during the waning days of the Vietnam War. And when the legacy media intoned about the January 6 “attack” on the “people’s house,” “the sanctity of our democracy,” etc., even some liberals surely had to laugh.
So far, a bipartisan share of Americans has shown little to no confidence in the January 6 Committee’s work—sentiment that would no doubt increase if the witch-hunting history and extraconstitutional nature of Congress’ investigatory powers was better known. As we watch its excesses unveil themselves before us today, this may be due to change.