WASHINGTON – House Minority Leader Kevin McCarthy, R-Calif., is threatening telecommunications and social media companies that comply with a request by the committee investigating the Jan. 6 attack on the Capitol by a pro-Trump mob, declaring that Republicans “will not forget” their actions.
McCarthy spoke with then-President Donald Trump on the day of the attack and is a potential witness in the select committee’s probe.
The panel on Monday asked 35 companies to retain phone records and other information related to the attack as it ramps up its investigation ahead of the return of Congress next month. Several of the companies indicated this week that they intend to comply with the panel’s requests, while only one so far has publicly said it will not do so.
“Adam Schiff, Bennie Thompson, and Nancy Pelosi’s attempts to strong-arm private companies to turn over individuals’ private data would put every American with a phone or computer in the crosshairs of a surveillance state run by Democrat politicians,” McCarthy said in a statement Tuesday night, referring to the chairman of the House Intelligence Committee, the chairman of the select committee and the House speaker.
“If these companies comply with the Democrat order to turn over private information, they are in violation of federal law and subject to losing their ability to operate in the United States,” McCarthy said. “If companies still choose to violate federal law, a Republican majority will not forget and will stand with Americans to hold them fully accountable under the law.”
It is not clear what law McCarthy is asserting the companies would be breaking if they comply with the panel’s request. McCarthy’s office did not immediately respond to a request for comment Wednesday.
Tim Mulvey, a spokesman for the select committee, said Wednesday that the panel “won’t be deterred by those who want to whitewash or cover up the events of January 6th, or obstruct our investigation.”
“The Select Committee is investigating the violent attack on the Capitol and attempt to overturn the results of last year’s election,” Mulvey said in a statement. “We’ve asked companies not to destroy records that may help answer questions for the American people.”
Mike Stern, a former lawyer for the nonpartisan House counsel office, said there are probably laws that bar phone carriers and other companies from turning over records voluntarily. But, if a subpoena is issued, those companies would be legally obligated to respond.
“Even if there is arguably a competing legal obligation or privilege that might trump the subpoena, I know of no principle that requires any subpoena recipient to risk contempt in order to protect the interests of their customers,” Stern said.
Some Democratic lawmakers and legal experts, meanwhile, accused McCarthy on Wednesday of trying to obstruct justice by threatening the companies.
“Every day we enter new uncharted territory,” Rep. Bill Pascrell Jr., D-N.J., said in a statement. “Last night, the House Republican leader openly threatened subpoenaed parties to undermine and impede the historic probe into January 6. His threats are treasonous.”
Norman Eisen, former White House ethics counsel in the Obama administration, argued that McCarthy’s action “meets the elements of obstruction.”
“It’s Orwellian. If these telecom companies fail to comply with the requirement to preserve these records, if they did what Kevin McCarthy wants . . . that would be a violation of law,” Eisen, the executive chairman of the States United Democracy Center and a senior fellow at Brookings, said during an interview on CNN.
“So this is absolutely unjustified by law, and it raises serious questions under the House ethics rules and other laws for Kevin McCarthy himself.”
Pelosi in June announced the formation of a select committee to investigate the Jan. 6 attack on the Capitol, after Senate Republicans blocked an effort to form an independent, bipartisan commission. McCarthy opposed both the bipartisan commission and the select committee.
The panel is charged with investigating the facts and causes of the insurrection and will provide recommendations to help prevent similar attacks in the future.
The select committee’s chairman, Rep. Bennie G. Thompson, D-Miss., recently said his panel would not shy away from investigating lawmakers as part of its inquiry, highlighting the remarkable nature of Congress investigating an attack on itself.
The committee’s plans have already drawn criticism from Republicans, most of whom have opposed investigating the insurrection and Trump’s role in inspiring the mob with his false claims about Joe Biden’s win in the 2020 election.
The request that went out Monday was sent to tech and social media companies including Facebook, Google, Microsoft, Twitter and Signal, as well as telecommunications companies including Verizon Wireless, AT&T, Sprint and T-Mobile.
The panel is asking the 35 companies to preserve “metadata, subscriber information, technical usage information, and content of communications for the listed individuals.”
In its letters to the companies, the committee asked for the preservation of material from individuals who were “involved in organizing, funding, or speaking” at January’s “Stop the Steal” rallies, as well as individuals who were “potentially involved with discussions of plans to challenge, delay, or interfere” with the electoral certification process.
In recent days, some of the companies have indicated that they intend to comply with the panel’s requests, including social media platform Reddit and Snap, owner of the video-sharing platform Snapchat.
Reddit spokesperson Cameron Njaa said in an emailed statement to The Washington Post that company executives have “received the letter in question and are fully cooperating with the Committee on this matter.” Snap spokesperson Rachel Racusen said its leaders “plan to comply” with the requests. In an emailed statement sent by a communications firm representing the Discord instant messaging platform, chief legal officer Clint Smith said the company’s executives “intend to cooperate fully as appropriate.”
Other companies, including Facebook and Google, said they plan to work with the committee but would not say whether they will comply specifically with the recent requests.
Ivy Choi, a spokesperson for Google, which also owns YouTube, said they “have received the Select Committee’s letter and are committed to working with Congress on this.”
“The events of January 6 were unprecedented and tragic, and Google and YouTube strongly condemn them,” Choi said. “We’re committed to protecting our platforms from abuse, including by rigorously enforcing our policies for content related to the events of January 6.”
Facebook spokesperson Andy Stone said in a statement, “We have received the request and look forward to continuing to work with the committee.”
Rumble, a YouTube rival popular with conservative influencers, said the company “complies with all valid law enforcement and investigative requests,” but it did not say whether it considers the committee’s requests as such, nor whether it will comply with them.
Only one company appears to have publicly indicated it will reject the committee’s request so far. A spokesperson for the Switzerland-based Proton Technologies, the parent company behind the encrypted email service ProtonMail, said it could not comply with the request due to Swiss blocking laws that restrict the sharing of evidence from the country with foreign authorities.
“Our use of zero-access encryption means that we do not have access to the message content being requested,” U.S. Communications Manager Matt Fossen said in a statement to The Post.
Under Swiss law, Fossen said, “it is also illegal for us to share data with U.S. authorities so we would be unable to comply without breaking Swiss law.”
Spokesmen for Amazon, Microsoft and Twitter declined to comment. Spokesmen for Apple, Verizon, AT&T, T-Mobile, TikTok, Slack, MeWe, 4chan, Signal, ProtonMail, Parler, and Twitch did not respond to requests for comment Tuesday and early Wednesday about the panel’s requests and McCarthy’s remarks. Amazon founder Jeff Bezos owns The Washington Post.
McCarthy and Rep. Jim Jordan, R-Ohio, have been the recent subjects of questions about which members could be called to appear before the select committee.
Earlier this year, Rep. Jaime Herrera Beutler, R-Wash., described what McCarthy told her about a phone call he had with Trump on Jan. 6 in which he asked the president to help calm supporters who had broken into the Capitol.
“When McCarthy finally reached the president on January 6 and asked him to publicly and forcefully call off the riot, the president initially repeated the falsehood that it was antifa that had breached the Capitol,” Herrera Beutler said in a statement in February, referring a to a loosely knit group of far-left activists.
“McCarthy refuted that and told the president that these were Trump supporters. That’s when, according to McCarthy, the president said: ‘Well, Kevin, I guess these people are more upset about the election than you are.’ “
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Dave Clarke and Karoun Demirjian contributed to this report.