Speaker Pelosi failed to appoint members consistent with the authorizing resolution of the Select Committee… Thus, the Select Committee as it currently stands—and stood at the time it issued the subpoenas in question—has no authority to conduct business because it is not a duly constituted Select Committee. Chairman Thompson’s subpoenas are invalid and unenforceable.”
Did you know that @SpeakerPelosi failed to comply w/ House Resolution rules re formation of the Jan. 6 committee? I didn't until I read Meadows' lawsuit. Presents fascinating legal question: Can a Committee not properly constituted issue subpoenas?
— Margot Cleveland (@ProfMJCleveland) December 14, 2021
A. The subpoenas are not validly issued by a duly authorized committee.
91. The composition of the House Select Committee to Investigate the January 6th Attack on the United States Capitol is governed by Section 2 of H. Res. 503. Section 2(a) states “Appointment Of Members.—The Speaker shall appoint 13 Members to the Select Committee, 5 of whom shall be appointed after consultation with the minority leader.” H. Res. 503 117th Cong. (2021).
92. Speaker Pelosi has appointed only nine members to the Select Committee: seven Democrats and two Republicans. None of these members was appointed from the selection of five GOP congressman put forth by Minority Leader Kevin McCarthy.
93. Authorized congressional committees have subpoena authority implied by Article I of the Constitution. McGrain v. Daugherty, 273 U.S. 135, 174 (1927). The Select Committee, however, is not an authorized congressional committee because it fails to comport with its own authorizing resolution, House Resolution 503.
94. Congress’ failure to act in accordance with its own rules is judicially cognizable. Yellin v. United States, 374 U.S. 109, 114 (1963). This is particularly significant where a person’s fundamental rights are involved.
95. Speaker Pelosi failed to appoint members consistent with the authorizing resolution of the Select Committee. Pelosi has appointed only nine members of Congress to serve on the Select Committee; whereas the authorizing resolution instructs the Speaker “shall” appoint thirteen members. H. Res. 503 § 2(a), 117th Cong. (2021).
96. Further, of those nine members Speaker Pelosi has appointed, none of them was appointed after consultation with the minority member, as is required by the authorizing resolution. H. Res. 503 § 2(a), 117th Cong. (2021).
97. Thus, the Select Committee as it currently stands—and stood at the time it issued the subpoenas in question—has no authority to conduct business because it is not a duly constituted Select Committee. Chairman Thompson’s subpoenas are invalid and unenforceable.
98. Chairman Thompson derives the authority to issue subpoenas solely from § 5(c)(6) of the Select Committee’s authorizing statute, but this authority is qualified, not absolute. The Select Committee chairman may not order the taking of depositions without consultation with the ranking minority member of the Select Committee.
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