Lawyers acting for constitutional law professor John Eastman have picked apart the raison d’etre for the January 6th Congressional committee, as well pointing out the potential for abuse of power and breaches of House rules.
Eastman – a target of the commission – is held up as guilty of insurrection by the political left for having the constitutional opinion that Vice President Mike Pence had no obligation to count ballots for states where political and legal proceedings were underway regarding election fraud.
The fisking of the committee will irk the already enfeebled group of Democrats, fresh off their latest round of embarrassments at the hands of another target: former Trump advisor Stephen K. Bannon.
Lawyer Charles Burnham wrote to committee chairman and violent black nationalist supporter Rep. Bennie Thompson:
We also have several objections to the legal propriety of your subpoena. These objections are important in their own right and as relevant context for Dr. Eastman’s assertion of his Fifth Amendment right. First, your committee lacks a ranking minority member, which makes it impossible to comply with relevant House Rules, including those applicable to subpoenas and depositions. Secondly, your extraordinarily broad subpoena goes far beyond even the most expansive reading of the Committees authorizing resolution in asking for materials bearing no reasonable relation to the events of January 6. Finally, the lack of true minority representation combined with your decision to take testimony in secret proceedings creates an extreme risk of gross unfairness to the subjects of your investigation. As I already stated, these are serious issues, both in their own right and as critical context for Dr. Eastman’s invocation of the Fifth Amendment.
The full letter, which deals with a number of critical flaws with the committee’s existence and understanding of the law, can be read below.
Pointing to critical technical details concerning the creation of committees, Burnham said:
…contrary to consistent historical practice and the express language of the authorizing resolution, none of the members of the J6 committee were appointed after consultation with the minority leader. All of the members were appointed by the Speaker, and all of the staff have been hired by those appointed by the Speaker.
In other words, Democrats pieced a committee together against the rules and under false pretenses in order to persecute their political opposition.
This Committee’s disregard of House Rules is no mere legal technicality. The lack of meaningful minority representation leaves the majority free to exercise its vast investigative authority unchecked, creating serious potential for abuse. One of its very first acts was to direct social media and telecommunication companies to preserve communications of private citizens, not just those who entered the Capitol on January 6 but a much larger group of those who were in Washington, D.C. simply to exercise their First Amendment rights of freedom of speech and association and to petition their government for redress of grievances. The letters sent by the committee specifically requested that these companies preserve information about individuals who were listed on permit applications or otherwise involved in organizing, funding, or speaking at the January 5, 2021, or January 6, 2021, rallies in the District of Columbia relating to objecting to the certification of the electoral college vote; and individuals potentially involved with discussions of plans to challenge, delay, or interfere with the January 6, 2021, certification. The letters identified not just metadata, but the content of communications, including all emails, voice messages, text or SMS/MMS messages, videos, photographs, direct messages, address books, contact lists, and other files or other data communications stored in or sent from the account, id. (emphasis added)and all of this without a search warrant based upon probable cause. The threat to First Amendment freedoms and Fourth Amendment rights inherent in such a demand is palpable.