EXCLUSIVE: McCarthy Files Amicus Brief Arguing Against Jan. 6 Committee Subpoenas

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House Minority Leader Kevin McCarthy filed an amicus brief Thursday in the contempt of Congress case against Steve Bannon arguing that the Select Committee investigating the Jan. 6 Capitol riot is exceeding its authority under the rules of the lower chamber.

The House of Representatives voted in October to hold Bannon in contempt after he refused to testify in front of the committee. He is one of four ex-Trump administration officials to be held in contempt by the House, along with former Chief of Staff Mark Meadows, former Deputy Chief of Staff Dan Scavino, and former economics adviser Peter Navarro. Unlike the other three, Bannon was not employed by the White House during the 2020 election and its aftermath, serving instead in 2017.

In a motion to dismiss filed in April, Bannon and his attorneys argue that his contempt charges are unlawful because the Select Committee violates the rules of the House of Representatives due to its lack of a minority-appointed ranking member. McCarthy’s brief supports that position, noting that Speaker of the House Nancy Pelosi described an “‘unprecedented’ approach to forming the Select Committee.”

WASHINGTON, DC – NOVEMBER 15: Former Trump Administration White House advisor Steve Bannon waves after speaking to the press on his way out of federal court on November 15, 2021 in Washington, DC. (Photo by Drew Angerer/Getty Images)

“It is therefore not at all extraordinary that the House failed to contemplate the possibility of less than thirteen (13) Members being appointed upon passage of Resolution 503,” which requires the inclusion of thirteen committee members, including five appointed by the minority, McCarthy’s brief says.

Republican Wyoming Rep. Liz Cheney has been described as the vice chair of the committee in public statements. However, Bannon’s filing notes, “the authorizing resolution does not grant any power to a vice chair. The resolution uses the term ‘ranking minority member,’ a term with a long history. A vice chair is not a ranking minority member.”

In an amicus filing responding to Bannon’s motion, House General Counsel Douglas Letter described Cheney as the ranking member.

Representative Cheney, by virtue of being the first minority party Member appointed to the Select Committee, is, by definition, the senior ranking minority member of the Select Committee. Accordingly, pursuant to the House’s longstanding interpretation of ‘ranking minority member,’ House Resolution 503 was satisfied by consultation with Vice Chair Cheney,” he wrote.

McCarthy’s brief supports supports Bannon’s interpretation, noting the inconsistent descriptions of Cheney’s role and arguing for the importance of minority representation.

“This distinction is not without a difference,” his lawyers write of Cheney’s position. “Minority leadership on any given committee ensures that deponents are afforded oversight of adherence to congressional rules, precedents, and established decorum.”

Pelosi initially appointed seven Democrats and Cheney to the Select Committee in July 2021, allowing McCarthy to recommend five Republicans. However, the speaker rejected two of McCarthy’s picks, Ohio Rep. Jim Jordan and Indiana Rep. Jim Banks. McCarthy then pulled his other three members, Illinois Rep. Rodney Davis, Texas Rep. Troy Nehls, and North Dakota Rep. Kelly Armstrong, from the committee. (RELATED: ‘Totally Partisan’: Rep. Jim Jordan Hits Back After Jan. 6 Committee Subpoena)

Pelosi then appointed Republican Illinois Rep. Adam Kinzinger to the Select Committee.

The committee subpoenaed McCarthy, Jordan, and three other House Republicans in early May, claiming that they have information about the Capitol riot that should be shared. None of the members are expected to testify.