A House select committee could take a rare step and vote Monday to refer fellow members of Congress for ethics investigations, as it wraps up a nearly 18-month investigation into the Jan. 6, 2021, attack on the U.S. Capitol.
Chairman Bennie Thompson, D-Miss., told reporters that the panel would consider House Ethics Committee referrals at the panel’s last planned meeting, along with votes to approve its final report and to send criminal referrals to the Justice Department and other entities.
In all those areas, the committee’s wrap-up effectively comes too late to translate into congressional action, as Republicans prepare to retake control of the House in January, experts say.
Time has all but run out to enact any legislation based on the Jan. 6 panel’s recommendations to prevent another such attack. The Justice Department already has ongoing criminal investigations into the Jan. 6 events.
And there is little indication that next year’s Republican-controlled House will agree to investigate its own members or follow legislative recommendations from a committee they criticized as illegitimate, those experts said.
One of the panel’s two Republican members, Rep. Adam Kinzinger of Illinois, said he wouldn’t be surprised if Republicans ignore the select committee’s recommendations, “because I think, right now, they still have to defend what happened.”
But he thinks the committee’s policy recommendations may have some hope down the line.
“It’s not just a matter of what’s gonna happen in January or February. It’s like what’s gonna happen a year or two down the road,” Kinzinger said. “And I do think public opinion is shifting on this.”
Thompson did not say which members it would consider referring to the Ethics Committee; however, multiple Trump allies have repeatedly surfaced in the committee’s public presentations.
Five Republican members — GOP leader Kevin McCarthy of California and Reps. Scott Perry of Pennsylvania, Jim Jordan of Ohio, Andy Biggs of Arizona and retiring Rep. Mo Brooks of Alabama — defied committee subpoenas for their testimony and documents earlier this year.
McCarthy, when asked at a news conference Wednesday about the possibility of the committee issuing criminal referrals for him or other members in response to their defiance of the select committee’s subpoenas, said he was not concerned.
“No, not at all. We did nothing wrong,” McCarthy said.
While the Jan. 6 panel probe led the House to vote for such criminal referrals on contempt of Congress for several outside witnesses, a referral to the Ethics Committee would be more likely for sitting members of Congress.
“I doubt the DOJ would even want to get involved in that, to be honest with you,” former Wisconsin GOP Rep. Reid Ribble said.
There is other information the committee has on member actions. During a hearing in June, the committee presented evidence that 11 House Republicans attended a December 2021 meeting that discussed Vice President Mike Pence discarding votes in contested states at the Jan. 6, 2021, meeting of Congress.
Cassidy Hutchinson, who was an aide to former White House Chief of Staff Mark Meadows, and several others testified that Reps. Matt Gaetz, R-Fla., Louie Gohmert, R-Texas, Perry and others sought presidential pardons.
Since that testimony, those members have denied asking for pardons as well as any wrongdoing.
Whatever conduct the select committee refers to the ethics panel, there’s not enough time for them to investigate this Congress. Thompson acknowledged that in an interview with reporters but said the Ethics Committee could still take up the referrals next year.
That appears unlikely because of how the Ethics Committee operates, where a Republican would need to agree to open an investigation. The Ethics Committee is split, with five Republican members and five Democratic ones, and the broader political environment in the House may make an investigation difficult.
Beyond defying the subpoenas, Republicans have publicly mulled investigating the select committee itself and ostracized members of their party who went along with the impeachment of Trump for his actions on Jan. 6 or participated in the probe.
Wiley Rein counsel Robert Walker, former chief counsel for the Ethics committees in both the House and Senate, said referring matters from the Jan. 6 select committee to the Ethics Committee would “test the dynamics” of a panel that typically operates by consensus.
Most issues surrounding the investigation into the Jan. 6, 2021, attack on the Capitol have broken down along partisan lines, he said. “For good or ill, I think it would be putting the Ethics Committee in a difficult position to refer these matters to the committee,” Walker said.
Kedric Payne, general counsel for the Campaign Legal Center and former deputy chief counsel for the Office of Congressional Ethics, emphasized the Ethics Committee’s bipartisan approach and the unprecedented situation presented by the attack.
“There is a chance there is a serious review of these allegations,” Payne said. “Nothing is really comparable to the Jan. 6 attack, and in the recent history of the committee it is rare for one committee to refer ethics violations of a member to another committee.”
Ribble said any ethics referrals could become radioactive in the Republican-controlled House, and any ethics referrals would be rejected in part to discount the Jan. 6 committee’s work.
“The problem is the committee took too long in its work,” Ribble said. “They have known this information for a very long time, and they could have made that referral when [Democrats] were still in the majority.”
That goes back to a decision by Thompson and other panel members to extend the investigation from a planned September release of the report and recommendation. At the time, Vice Chair Liz Cheney, R-Wyo., said they wanted to collect more information for their report.
Kinzinger pushed back on criticism of the committee for taking more time to investigate before publishing its report in a partisan climate.
“For the last year or so, people said, ‘Doesn’t this open you up to charges of this or charges of that?’ You know, all we can do is do what we are going to do,” Kinzinger said. “This is a process, and it is a process we are finally going to get done and through to the American people.”
Thompson told reporters Thursday the panel would have broader “policy recommendations” that went beyond legislative proposals. He also said the committee was looking at the practices that prior investigative panels such as the 9/11 Commission had in campaigning for policy changes based on their findings.