Capitol attack panel grapples with moving inquiry forward: to subpoena or not?

The select committee is undecided on whether to take that near-unprecedented step, in part because of one major concern that has emerged in recent days, according to two sources familiar with the matter: Republican retaliation against Biden and Democrats in future inquiries.

In private conversations, some members and investigators on the select committee have expressed how appalled they are at the refusal of McCarthy and the Republican lawmakers to help the investigation, and feel prepared to subpoena for their testimony, the sources said.

In response, some members and investigators on the select committee have quietly raised the possibility that if the panel declines to subpoena Republicans now, then a Republican majority might not subpoena Democrats in the future, the sources said.

The issue has proved a difficult conundrum for the select committee, which started serious discussions about subpoenas to Republicans after Jordan and Perry refused to cooperate, and escalated the urgency of talks after McCarthy also declined to help the inquiry.

Even in the absence of any formal decision, the possibility of subpoenas has already become a touch point as the select committee grapples with the so-called speech and debate clause in the constitution that shields lawmakers while they perform their official duties.

A spokesperson for the select committee declined to comment on internal discussions about how aggressively the panel might act to secure cooperation from McCarthy, or whether counsel for the panel has reached a determination on the matter.

There remains a possibility that McCarthy, Perry and Jordan might cooperate with the select committee in the event of a subpoena, using the potential legal threat to justify their reversals to Trump, who the Guardian reported last month is agitated by the investigation.

If the select committee decides it has the authority and resolve to issue subpoenas, the sources said, then the primary remaining question would likely be a matter of timing, and when best in the investigation the panel should force their cooperation.

Additional concerns have centered on the ability to enforce subpoenas to Republican lawmakers if the select committee did take that step, and whether a federal judge would countenance becoming mired in what is essentially becoming a partisan fight in Congress.

Moving ahead with criminal contempt of Congress against the Republican lawmakers would mark an escalation that tests the limits of congressional subpoenas, threatening to touch off a legal fight the panel might not have time to conclude as it races to finish its report.

Gowdy faced internal pressure from the House Republican conference for his reluctance to subpoena Democrats, the source said, but that was in part to make sure lawmakers would not defang the power of congressional subpoenas if they simply refused to comply.

That leaves the select committee with only a handful of options, which appear to rest on a gamble over whether it can shame Republicans into cooperating, including a formal resolution on the House floor censuring or admonishing the lawmakers.