On the Eastman subpoena

The House of Representatives Select Jan. 6 Committee has undertaken to subpoena the communications of private citizens and others in the scope of its investigation. In a November 8 press release, the committee announced that it sought to sweep up the records of six named individuals, including attorney John Eastman. Eastman rendered legal advice to Trump on the applicable constitutional provisions and spoke at the January 6 rally. They are the subject of the essays I flagged in “CRB: The Eastman memos.”

Last night Tucker Carlson interviewed Eastman about the committee’s efforts to sweep up his communications. I have posted the video below.

The committee exercises its subpoena power subject to enforcement by criminal contempt. Usually that’s not much of a threat, but the Biden/Garland Justice Department is on board with the House committee.

Eastman’s comments raise a question regarding the lawful scope of Congress’s subpoena power in this matter. On this point, I have no knowledge. Looking around online, however, I found Elizabeth Goitein’s September 22 column specifically anticipating and addressing the legal issues as to January 6 protesters. Goitein’s analysis was originally posted here at Just Security and subsequently reposted by here the Brennan Center for Justice.

I am unable to evaluate Goitein’s analysis, but it is clearly written in good faith from the perspective of a professed supporter of the committee’s investigation. Goitein expresses serious doubts about this aspect of the project. She concludes:

Those who support the Jan. 6 committee’s investigation (and I include myself in that category) will be tempted to champion the broadest possible powers of inquiry. But those powers must be balanced against the constitutional rights of private citizens, and what the Jan. 6 committee does now will set a precedent for future congressional investigations. A rule that allows Congress unfettered access to the emails, text messages, and geolocation information of protest organizers will serve none of us well in the long run.

I should add that Goitein’s analysis may differ as to the individuals identified in the November 8 and other press releases, including Eastman. In any case, I found Goitein’s analysis interesting, useful, and troubling.

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