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House Jan. 6 panel revelation on pardons raises questions

Committee set to reveal which members might have requested a pardon, and there could be fallout

The Select Committee to Investigate the January 6th Attack on the Capitol holds its first hearing in the Cannon House Office Building in Washington on Thursday, June 9, 2022.
The Select Committee to Investigate the January 6th Attack on the Capitol holds its first hearing in the Cannon House Office Building in Washington on Thursday, June 9, 2022. (Bill Clark/CQ Roll Call)

A House select committee revealed Thursday that “multiple” Republican members of Congress had requested pardons from former President Donald Trump after the Jan. 6, 2021, attack on the Capitol — but named only one of them.

With just a few lines of an opening statement, Vice Chair Liz Cheney of Wyoming opened up speculation about which of her fellow Republicans might have thought their actions backing Trump’s efforts to overturn that election had crossed a criminal line.

And she said the committee would present the evidence in other hearings this month about what it learned during a yearlong investigation, with Trump at the center of a broad plan to overturn his loss in the 2020 election that resulted in the Jan. 6 attack.

Multiple experts said Cheney’s accusation raises complicated questions about pardons and how laws and ethical rules will apply to House members in the wake of the panel’s investigation.

Douglas Berman, a law professor at Ohio State University who specializes in criminal law, said an individual seeking a pardon before being charged with a crime means that they knew their actions “were at least legally questionable if not fully illegal.”

“The fact that prosecutions of political figures are so rare, especially for conduct that could be feasibly called part of the political exercise, means that in their mind they were obviously afraid they had crossed that line and could be prosecuted,” Berman said.

More later

Cheney, speaking at the Jan. 6 committee’s first hearing about the assault after a yearlong investigation, said Pennsylvania Republican Rep. Scott Perry involved himself in Trump’s pressure campaign for the Justice Department to intervene in his loss in the 2020 presidential election. Otherwise, she provided few details about the pardon request.

“As you will see, Rep. Perry contacted the White House in the weeks after Jan. 6 to seek a presidential pardon,” Cheney said. “Multiple other Republican congressmen also sought presidential pardons for their roles in attempting to overturn the 2020 election.”

A spokesman for Perry, Jay Ostrich, called the allegation “a ludicrous and soulless lie” in an email Friday.

Panel Chair Bennie Thompson, D-Miss., said the committee made a conscious effort to include only the information it could prove in its presentation.

“As you know, the fact-checkers will look at everything that was presented, and we made a conscious effort to only put on what we could prove,” Thompson said in an interview with CNN Thursday evening.

But the committee kept that information in its pocket for now. Cheney’s statement in the hearing also touched off tongue-in-cheek barbs on Twitter. Rep. Ted Lieu, D-Calif., tweeted that the alleged pardon requests showed “Consciousness of guilt.”

California Democratic Rep. Eric Swalwell tweeted, “If you are a @HouseGOP member who did NOT seek a pardon for trying to overthrow your government, you should probably say that.”

In another, Hawaii Democratic Sen. Brian Schatz said, “Ok I will start. I didn’t ask for a pardon.”

Berman said it was “a little bit unsavory” that Cheney named Perry, and hinted at others, without providing more information.

“Without a lot of meat on the bone I can’t help but wonder that they seem to hope that everyone is going to get asked,” whether they sought a pardon, Berman said.

Berman, along with other experts like former Wisconsin GOP Rep. Reid Ribble, noted the committee has to substantiate what little information it has provided so far before other institutions like the Justice Department or Ethics Committee could act.

“We have not gotten enough of the testimony about this,” Ribble said. “Clearly [the committee is] headed someplace, but we don’t know where they are headed yet.”

Perry named

A Senate Judiciary Committee staff report on the attack also named Perry last year, and documented Perry’s multiple contacts with Justice Department officials in the days following the election, apparently discussing false claims about election fraud in Pennsylvania.

The Senate report said Perry connected Trump Jeffrey Bossert Clark, who was a Justice Department attorney at the time. On Thursday, Cheney noted that Clark was offered the position of acting attorney general amid Trump’s effort to have the Justice Department intervene in the certification of the 2020 election results.

According to Cheney, Clark also drafted a false letter to states saying the Justice Department found irregularities in the 2020 election and urged them to send alternate electors. Cheney said a hearing next week would detail Trump’s effort to have the Justice Department intervene in the results of the 2020 election.

Perry was one of five Republican members of Congress subpoenaed by the panel.

In her opening statement, Cheney noted that Perry has not cooperated with the committee, including after it issued a subpoena for his testimony. The committee sought information about his attempts to elevate Clark as well as his communications with former White House Chief of Staff Mark Meadows, according to a letter the panel published last year.

Ethics questions

Ribble, now a member of Issue One’s National Council on Election Integrity, said he found it “quite shocking” that Perry and other sitting House members requested pardons following the attack. He noted the committee could make Justice Department referrals about potential criminal conduct it uncovers.

“Why did they ask? That’s the question of the day,” Ribble said of the pardon requests, since the Constitution’s Speech or Debate Clause gives House members broad protections from criminal prosecutions for acts related to their official duties.

“There is a lot of protection for members of Congress to talk about these topics. It has to tell you there was concern there they might have crossed the line,” Ribble said.

Bryson Morgan, an attorney at Caplin & Drysdale and former investigator for the Office of Congressional Ethics, said the Speech or Debate Clause poses a “tricky question” for prosecutors seeking criminal cases against members of Congress.

“That can make it very difficult to investigate that conduct and have evidence that can be presented that doesn’t fall under the clause,” Morgan said.

That’s where the House Ethics Committee may come in, according to Morgan. House ethics rules have a clause stating members should act in a way that “shall reflect creditably on the House” and violations are meant to catch conduct that “might otherwise go unpunished.”

“There is a gap there, and this requirement for members to conduct themselves in a manner ‘creditably’ to the House is meant to be a way for members to be held accountable for their conduct that is out of the reach of the executive and judicial branches,” Morgan said.

Morgan said the Ethics Committee faces an inflection point if it does not act on any misconduct by Republican members that the Jan. 6 panel uncovers — he likened it to the panel’s lack of action on reports of abuse of House pages in the early 2000s.

“There is something in the ethical fabric of Congress that would be lost if the Ethics Committee doesn’t have a role here,” Morgan said.

That committee has the power to initiate investigations on its own or through the Office of Congressional Ethics, Morgan said.

He noted, though, that the committee would require bipartisan consensus to fine or reprimand any member, and more significant punishments like a censure or removal from the House would require a floor vote.

Republicans, who are likely to take control of the House this fall, have downplayed the committee’s work.

On Twitter prior to the hearing, Perry, who heads the conservative House Freedom Caucus, called the panel’s work “political theater” distracting from an attempt to attack Supreme Court Justice Brett M. Kavanaugh.

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