Policy Letter

Letter to January 6 Committee Supporting Careful Use of Subpoena Authority

(Illustration: Leslie Garvey / POGO)

House Select Committee to Investigate the January 6th Attack on the United States Capitol
Chair Bennie G. Thompson
2466 Rayburn House Office Building
Washington, DC 20515

Liz Cheney, Vice Chair
House Select Committee to Investigate the January 6th Attack on the United States Capitol
416 Cannon House Office Building
Washington, DC 20515

Dear Chairman Thompson and Vice Chair Cheney:

As an organization that is strongly committed to both Congress’s oversight role and civil liberties as essential components of our democracy, we at the Project On Government Oversight (POGO) write to highlight the importance of exercising care in your committee’s use of subpoena authority to collect private communications and other information. Demands for information, both documentary and testimonial, should be limited to furthering the committee’s legislative purposes, including introducing new laws to prevent another attack on the U.S. Capitol.1 The committee should wield its subpoena authority carefully, especially as it relates to conduct that is protected as free speech and association, and private information that is protected by the Fourth Amendment.

On August 30, the committee submitted a series of preservation orders to companies for records from individuals involved in the January 5 and 6 rallies to object to the certification of President Biden’s election.2 These orders apply to forms of information — notably communications content and cellphone location data — that generally require a warrant for the government to access, as well as other sensitive forms of information, such as communications metadata. Their scope also goes beyond those who committed illegal activities at the Capitol to include “individuals who were listed on permit applications or were otherwise involved in organizing, funding, or speaking at the January 5, 2021, or January 6, 2021 rallies.”3

The Project On Government Oversight believes Congress has broad authority to gather information.4 Congress has legislative and oversight responsibilities, both of which are vital to our democracy and require access to information, including via subpoena. We have repeatedly worked to ensure Congress is not improperly inhibited in access to information to achieve its aims.

However, it is also essential that Congress’s power to gather information be wielded responsibly, especially when information gathering implicates private information or First Amendment-protected activities or could otherwise impact civil rights and civil liberties. Congress’s efforts to compel production of records should always be in furtherance of its legislative and oversight purposes. Furthermore, it should not chill constitutionally protected activities.

Past Congressional actions — especially those justified in the name of security — show the importance of exercising such care. Most infamously, during the Red Scare of the 1940s and 1950s, Senator Joseph McCarthy and the House Un-American Activities Committee both used congressional powers to collect private information on, expose, and demonize communist sympathizers. In 2011, the House Committee on Homeland Security led hearings focused on targeting and disparaging Muslim communities, a measure Chairman Thompson rightfully criticized at the time in his role as the committee’s ranking member.

Indeed, we at POGO were the subject of overreaching subpoenas in the 1990s, including subpoenas for my home phone records, in an effort to identify whistleblowers who had exposed the oil and gas industry’s fraud in underpaying royalties.5

If similar efforts to target and malign government critics or marginalized communities are attempted in the future, it is vital they cannot weaponize the vast array of private digital information that exists in modern society, or collect such information to harm or chill expression by religious minorities, political dissidents, or whistleblowers. The actions the committee takes in the coming weeks may set important precedent for how congressional demands for records are used going forward.

We recognize the strong public interest in fully investigating the conditions that led to the insurrection, especially those perpetuated by individuals within our government. But it is important to distinguish those who planned, conducted, or aided the attack on the Capitol from their political affiliates generally. While claims of election fraud were baseless and have seriously undermined public faith in our democracy, false and grossly offensive speech is still constitutionally protected. Accordingly, we urge the committee to be especially cautious in its demands for records that could implicate First Amendment rights or set precedent for future demands that chill First Amendment-protected activities.

We firmly support the committee in uncovering the full details of the attack on the Capitol on January 6, its causes, and its role as the culmination of attempts to overturn the 2020 presidential election. We hope that as the committee continues its important work, it will wield subpoena authority carefully, especially as it relates to conduct that is protected as free speech and private information that is protected by the Fourth Amendment. As you consider these challenging and sometimes unprecedented questions, we would be happy to provide assistance in assessing how to carry out Congress’s legislative and oversight duties while simultaneously supporting civil rights and civil liberties.

Thank you,

Danielle Brian
Executive Director
Project On Government Oversight