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Why McCarthy has no need to fear the House Ethics Committee

The Jan. 6 committee's referral of Kevin McCarthy, Jim Jordan, and other Republicans is necessary — but won't end well.

In a sane world, the House Jan. 6 committee’s final report would be a disaster for congressional Republicans. Not only was former President Donald Trump referred to the Justice Department for criminal charges, but four GOP House members were also referred to the Ethics Committee — including Kevin McCarthy of California, who is aiming to become speaker of the House next year.

At issue: McCarthy and his fellow Republicans refused to respond to the committee’s subpoenas as part of its investigation into the attack. Referring these Republicans is an appropriate, even necessary, step by the committee — but a fruitless one, unfortunately. Absent a crime, the body that the Constitution charges with enforcing discipline on Congress is … Congress. And the way things are set up, it seems highly unlikely that McCarthy or any of his fellow scofflaws will face any serious consequences.

McCarthy is joined in this ignominy by Arizona’s Andy Biggs, Ohio’s Jim Jordan and Pennsylvania’s Scott Perry. According to the executive summary of the committee’s final report, each of these men had information that was crucial to the investigation into the attack on the Capitol. Jordan and Perry “were involved in discussions with White House officials about Vice President Pence’s role on January 6th as early as November 2020.” Biggs worked “to gather signatures from Arizona lawmakers endorsing fake Trump electors.” And as House minority leader, McCarthy, “among other things, had multiple communications with President Trump, Vice President Pence, and others on and related to January 6th.”

It seems highly unlikely that McCarthy or any of his fellow scofflaws will face any serious consequences.

After the committee’s requests for voluntary cooperation were rejected, it voted in May to approve subpoenas for the four members. The Republicans’ responses ranged from dismissal to utter disparagement of the committee’s work. “The Rules of the House of Representatives make clear that their willful noncompliance violates multiple standards of conduct and subjects them to discipline,” the executive summary reads. “If left unpunished, such behavior undermines Congress’s longstanding power to investigate in support of its lawmaking authority and suggests that Members of Congress may disregard legal obligations that apply to ordinary citizens.”

Unfortunately, it is all too likely that their behavior will be left unpunished. “The ethics program in Congress is a joke, and there’s almost no chance that the ethics committee will do its job,” Walter Shaub, the former head of the U.S. Office of Government Ethics, told me in an email. “That committee has a bad track record for transparency, so it will probably also keep the public in the dark about how it is processing the referrals.”

The Ethics Committee’s track record since it was established in the 1960s doesn’t do much to contradict Shaub. "Outside ethics experts often criticize the panel for both a lack of transparency and slow-moving investigations that can take years before there’s any outcome," The Washington Post's Paul Kane wrote in April. "Its subpoenas are issued secretly and sometimes cases are closed with no public reckoning. Rep. Charles B. Rangel (D-N.Y.), in 2010, was the last lawmaker to face a committee censure recommendation, and James Traficant (D-Ohio), in 2002, was the last member expelled following an ethics investigation."

The last time as high-ranking a member as McCarthy faced an Ethics Committee investigation was in 1997, when the House “voted overwhelmingly, 395-28,” to reprimand then-Speaker Newt Gingrich, R-Ga., and “fine him $300,000,” as NPR later recalled, after a lengthy investigation by a special counsel. That an outsider was needed at all is in part because of the Ethics Committee’s makeup: It is the only evenly divided panel in the House, split between Democrats and Republicans.

Things have only grown more partisan since Gingrich’s day, and while there has been occasional bipartisan agreement on the most egregious offenses, the odds of any action’s being taken at all on the committee’s referrals seem slim at best. “For this type of complaint, either the committee chair or the ranking committee member can block committee action by demanding a vote as to whether there will even be an investigation,” Shaub explained to me. “Unfortunately, an investigation is only authorized if a majority of the committee’s members vote in favor of investigating the complaint. So that would be the end of the story.”

We have a case in which the man who would be speaker is prepared to chip away at the rule of law yet again

Granted there are other actions Congress could take against these four Republicans, up to and including expulsion. But that would require an even higher bar than the majority vote of the House that would be needed to force the Ethics Committee to begin investigating the referrals next year. And though McCarthy isn’t exactly Mr. Popular with his full caucus (Biggs is actually running against him for the speaker’s gavel), there’s almost no chance that enough members would join Democrats to push the process forward.

The Constitution that Republicans profess to love was written at a time when it was assumed that members of Congress would rather expel a stain on the body’s honor than give him quarter. It thus gave Congress the ability to both determine its own rules and judge the qualifications of its members. Today, we have a case in which the man who would be speaker is prepared to chip away at the rule of law yet again in an erosion of the idea that members of Congress are not somehow above the law compared to their constituents.

That Republicans would reflexively circle to protect their vulnerable members like wildebeest facing down a lion is no surprise at this point. It feels like a waste of breath to appeal to any shame they have left in that regard. But it’ll be worth bearing this little exercise in mind the next time McCarthy tries to talk about the “lawlessness” of the Democrats, given he’s the one who should be under investigation.