What Is Kevin McCarthy Talking About?

A number of commenters have questioned the efficacy of GOP pushback against the Dem House's request for  telecom records that probably targets GOP representatives in the context of the January 6 Event "insurrection" witchhunt that Pelosi hopes will save her House. Initial reports characterized these requests as congressional subpoenas, but it now appears that they are simply request letters issued by the Dem House. Commenters questioning the efficacy of any GOP pushback assume that the telecom companies will simply and joyfully turn over all records to the Dems, ignoring McCarthy's threats of payback if or when the GOP retakes the House.

Commenter aNanyMouse cites a sentence from The Hill's generally good account, which questions McCarthy's assertion that it's illegal for the telecom companies to comply with these request letters:

"McCarthy did not cite which law prohibits telecommunications companies from complying with the committee’s request."

To understand what's in play here, we need to review some basic matters of criminal and national security investigations.

As should be well known, telecom and financial companies are required to comply with grand jury subpoenas, which usually require that the companies refrain from advising their account holders of the subpoenas. This also holds true for national security letters in national security investigations. These letters are a species of administrative subpoenas. While administrative subpoenas of all types are controversial in legal circles, they have been upheld by courts (see here for discussion). Please Note: These subpoenas of whatever sort are issued by the Executive Branch agencies, whether or not they are reviewed for sufficiency by a judge in the Judicial Branch. The requirement of secrecy applies in criminal investigations or national security investigations, which these government agencies have the authority to conduct.

Congress, too, has the power to collect information, but there's a crucial difference. Whereas Executive agencies are empowered to compel that information be turned over, they do that for purposes of criminal or NS investigations. Congress's power to collect information pertains to its status as the Legislative Branch. While the SCOTUS tries to stay out of political disputes, it has repeatedly held that congressional subpoenas must pertain to Legislative functions. They are NOT the same as grand jury or administrative subpoenas and Congress has NO authority to conduct criminal investigations. In the current context, criminal (and possibly NS) investigations of the January 6 Event are being conducted with great zeal by DoJ, the FBI, and quite possibly other federal agencies. I have not the slightest doubt that every form of legal process available to these agencies is being employed in those investigations. Given that both the Executive and Legislative Branches are controlled by the Dems, there can be no question of obstruction.

Now, there is one situation that needs to be mentioned because other commenters have alluded to it. Part of the House's legislative authority pertains to a matter that isn't legislative in the usual sense--yet neither is it, strictly speaking, judicial. I refer to impeachment. House impeachment inquiries are not criminal investigations, even if criminal matters are involved, for the simple reason that the House is not empowered to prosecute.

In the course of the House impeachment theater conducted during President Trump's administration, the Dem House requested data from telecom companies--which complied with those requests. My understanding of the situation is that the records they sought pertained to Rudy Giuliani and a number of other private citizens. I don't know whether Giuliani was informed of the requests by the companies before they turned the records over, although I suspect that they did--for the reason that I don't recall Giuliani complaining. If I'm wrong, somebody please cite that for me. However, what I do know is the the GOP did not contest the validity of those requests per se--what they complained of was that the Dems revealed that Devin Nunes had been in contact with Giuliani. Please Note: This came from Giuliani's records rather than Nunes' records. It's possible that requests were made for the records of some GOP members, but I don't recall. Again--this was all in the context of impeachment, which until recently was a very exceptional function of the Legislative Branch.

What we're seeing now looks very much like Pelosi attempting to conduct what looks like a criminal investigation. But it's not. Only the Executive Branch can do that, and in point of fact that's being done with great zeal. Thus, it seems transparently clear that what Pelosi is attempting to do is to collect information that can be used for political purposes through leaks--under cover of Legislative authority. The dead giveaway of this intent, in my view, is that the Dem House is requesting the telecom companies NOT to inform their account holders of these requests. The idea is clearly to preserve deniability once leaks are perpetrated. 

OK, why is the Dem House making that request, which seems like tipping their hand? The reason is that the telecom companies have, for decades, vigorously disputed the authority of all legal process for their account holder records unless provided with a court order or grand jury subpoena. While the telecom companies have regularly lost in court, they have continued to challenge national security letters, for example. To be precise--they're willing to comply, to provide the requested data, but they insist that they should inform the account holders of what's going on.

In the present context, these Dem House request letters--or congressional subpoenas, if it comes to that--are highly questionable. We're totally outside the exceptional case of impeachment. Nor is the Dem House authorized to conduct a criminal or NS investigation. Note, too, that the Dem House letters don't issue threats against the telecom companies if they should inform their account holders. Rather, the letters say, if you insist that account holders be informed, just hold on--don't turn the records over to us and inform the account holders; instead, keep the records and get back to us to discuss the situation.

Do you understand what's going on there? The Dem House understands that they're on shaky legal ground here as regards secrecy. The reason is because there is a web of law that protects the privacy of individuals with regard to their communications and financial information. Also other areas, such as medical records. Any release of information is strictly controlled and must be authorized by the individual. LE is allowed to obtain that information secretly because the laws provide exceptions for that purpose, although typically the target must be informed at some point. But there are no exceptions for Congress. Congress can request the records, but there's no provision for keeping the request secret because Congress isn't conducting any criminal or NS investigation. Again, this is why the request for secrecy is a dead giveaway of the political intent--not proper legislative intent--behind these letters.

For these reasons, McCarthy's threats are not empty. If the telecom companies turn over private records without informing the account holders, they could find themselves in very big legal and legislative trouble down the road, if the GOP takes the House back. Of course, if the telecom companies do inform the account holders, then those individuals can challenge the requests/subpoenas in court. If that happens, I think the Dems lose.