Do Democrats have a subpoena problem? Lawsuit targeting rules latest mishap for Jan. 6 panel

Pennsylvania GOP gubernatorial nominee Doug Mastriano sues committee, claiming its failure to follow rules may invalidate demands for compelled testimony and documents

Updated: September 1, 2022 - 11:49pm

The Jan. 6 committee run by House Democrats has had quite a run. Its members accused a GOP lawmaker of running reconnaissance for the Capitol invaders, but police debunked the claim with video footage.

Their star witness in a prime-time hearing, former junior White House aide Cassidy Hutchinson, whipped the media into a frenzy with a sensational story about President Donald Trump grabbing the wheel from his protective detail in an epic struggle inside the presidential limousine. The only problem was her story was hearsay, and the Secret Service said it never happened.

The panel also accused former New York Police Department Commissioner Bernard Kerik of attending a Jan. 5, 2021 meeting in Washington D.C. to discuss blocking certification by Congress of the 2020 vote. But it had to apologize when toll and phone records showed Kerik was 300 miles away that day in New York City.

Now the committee's primary tool for compelling evidence and testimony is coming under a dramatic credibility assault from a lawsuit by the Republican nominee for Pennsylvania governor alleging the committee failed to follow House rules in a manner that should invalidate its subpoenas to witnesses.

If Doug Mastriano succeeds in his legal case, it not only could change his obligation to testify, it could also impact the cases of other witnesses like Steve Bannon and Peter Navarro accused of criminal contempt of Congress.

Filed Thursday evening in U.S. District Court in Washington D.C., Mastriano's lawsuit claims the committee's failure to get Republicans to name a ranking member invalidates its power to enforce its subpoenas. For good measure, the complaint also challenges the validity of Chairman Bennie Thompson's signature on Mastriano's subpoena, providing evidence suggesting it may be an autopen signature generated by staff.

"The focus of this complaint is not the legitimacy of the Committee," the plaintiff argues. "Rather, it is the Committee's absolute inability to legally compel deposition testimony in compliance with the Regulations for Use of Deposition Authority. A properly appointed Ranking Minority Member is necessary for a witness, such as Plaintiff, to avail himself of the protections afforded to him in the Rules on the Use of Deposition Authority."

"The U.S. House of Representatives Select Committee to Investigate the January 6th Attack on the United States Capitol is unable to comply with the House Regulations for the Use of Deposition Authority and is therefore unable to conduct a compelled deposition of the Plaintiff, or any other witness who does not consent to being deposed," it added.

A spokesman for the committee did not immediately return a call Thursday night seeking comment.

To back his argument, Mastriano's lawyer Timothy Parlatore provided a letter from House Republican Leader Kevin McCarthy stating Democrats are in violation of their rules and cited a 1978 court ruling that congressional subpoenas are enforceable only when the committees "conform strictly to the resolution establishing its investigatory powers."

Mastriano, a state senator backed by Donald Trump, won the GOP nomination for governor and is facing Democrat Attorney General Josh Shapiro in November. Mastriano was subpoenaed earlier this year by the committee over his efforts to investigate election irregularities in his state during the 2020 election.

The complaint laid out conversations — some in colorful detail — that Mastriano's legal team held with the committee in an effort to reach a negotiated deal to testify. It alleges Democrats would not agree to Mastriano's requests that any deposition be transparent to avoid Democrats cherry-picking information and leaks to influence the election.

"Because Plaintiff is currently the Republican nominee for Governor of the Commonwealth of Pennsylvania, he asked the Committee to agree to certain prophylactic measures that would ensure that his participation would not run the risk of improperly influencing the Pennsylvania state election," the lawsuit said.

"Unfortunately, the Committee refused to negotiate any terms of a voluntary interview that would prevent them from improperly influencing the election, thus necessitating this litigation," it added.

The suit also relates details of an attempt to start a deposition this summer in which Democrats allegedly became angry when Mastriano's lawyers questioned Thompson's signature on the deposition.

"Counsel for the Plaintiff inquired as to whether the subpoena had actually been issued by the Chairman, as required," the suit said. "This inquiry was prompted after noticing that the signature on the August 8, 2022 letter was absolutely identical to the one on the subpoena itself.

"When the question was asked whether the Chairman had issued the subpoena or if a staffer had instead issued it using an autopen, the Committee representatives became upset and refused to answer, thus increasing suspicions that Chairman Thompson did not issue the subpoena or the letter."

The suit includes pictures of the signatures showing they were identical.

The suit said after the two sides argued over the ranking member issue, Democrats tried to forcibly start the deposition but forgot one key step.

"Oddly, a representative of the Committee then proceeded to start asking Plaintiff questions," the suit related. "When asked by counsel for Plaintiff what he was doing, the representative announced that the deposition had commenced and that Plaintiff was not permitted to leave while a deposition question was pending. Counsel for the Plaintiff then reminded the representative for the Committee that ordinarily deposition questioning cannot commence until after a witness was sworn — something that had not occurred."

The suit asks the court to make a "declaratory judgment that Plaintiff is not required to sit for a compelled deposition" and to order Congress to pay Mastriano's legal bills.

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