On August 31st, House Speaker Kevin McCarthy (R-Calif) made it clear that if Republicans ever regain a majority in Congress, that they will not hesitate to abuse the authority of their offices by attacking those telecom committees that honor subpeonas issued by the Committee investigating the attempted overthrow of our Federal government on January 6th. On August 31st, McCarthy declared via tweet that (capitalization and punctuation errors reproduced as in original tweet):

“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 Democratic politicians. 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. If companies still choose to violate feeral law, a Republican majority will not forget and will stand with Americans to hold them fully accountable under the law.”

Majorie Taylor-Greene, another ardent Trump supporter who represents the 14th District of Georgia appeared on Tucker Carlson’s right-wing propaganda program on FOX to claim that: “If these telecommunications companies, if they go along with this, they will be shut down. And that’s a promise,” and then went on to claim that the January 6th investigation was a “witch hunt”, and that a future Republican Congress would take any cooperation “very seriously”.

McCarthy’s tweet and Greene’s comment have already resulted in public calls for Congressional pushback and an ethics investigation, but this is a matter that really needs to be handled by the Department of Justice. Both of the sources linked to in the previous sentence pointed out that McCarthy and Greene’s comments are an obvious attempt to obstruct a Congressional investigation, a violation of 18 USC § 1505. In this essay, I will present a brief argument describing how Greene and McCarthy should also be charged for violating 18 USC §§ 371 and 1513e. This prosecution is a matter where McCarthy and Greene’s actions were public, and their intent was obvious. One of the great fallacies of our Justice system is that when you have a white defendant who holds a position of authority that criminal intent is some great mystery that can only be determined through a complex series of divinations and rituals. That is not the case here. McCarthy and Greene were both clearly issuing a threat that was intended to intimidate potential witnesses to a Congressional investigation for the purpose of conceaing testimony. They acted in concert and made statements that were both blatant and public. Our Democracy will not survive if we continue to allow this kind of lawlessness from Republican elected officials. The combined maximum sentence for the charges presented in this argument would be 23 years (5 years for the 18 USC § 371 charge, 8 years for the 18 USC § 1505 charge because it involves domestic terrorism, and 10 years for the 18 USC § 1503e charge) if the sentences are scheduled to be served consecutively rather than concurently, and McCarthy and Greene deserve to spend every last day of that sentence in a Federal prison. Examples must be made. Failure to impose severe penalties on Republican lawmakers will result in them becoming increasingly bold, until they have finally achieved their apparent goal of turning the United States of America into a white nationalist authoritarian state modeled on the political platform of Donald J. Trump. A slap on the wrist punishment like Congressional censure not only isn’t a deterrant to people like McCarthy and Greene, it’s an asset that they can wave at their constituents and tout as “proof” that Congress was scared of them for standing up for Trump and telling people “the real truth”. Those kinds of milquetoast penalties are not enough to save American Democracy from the rise of authoritarianism in the extreme right. Only the most extreme penalties will do, and anyone who argues otherwise is simply fooling themselves.

“Res ipsa loquitur” is a traditional latin phrase used in law which means “the thing speaks for itself”, and that is certainly the case with McCarthy and Greene’s public statements. We should not allow Republicans to engage in any attempt to obfuscate what their primary motivation was. They were very clearly frightened of what discovery of lawmakers‘ phone records might reveal, and they tried to intimidate the heads of telecom companies by threatening retaliation in the form of onerous government regulations, and to tie up top executives from those firms in hours and hours of government hearings and politically motivated investigations. Given that they will both deny that was what they meant by those comments, they should be interrogated on the witness stand as to what they “really meant” with those comments.

18 USC § 1513e states: “(e)Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.” There is no question that threats to “shut down” telecom companies who work with the Congressional investigation is a threat to the employment and livelihood of individuals who work for those telecom companies. There is a catch here for the January 6th committee in that the phrase “law enforcement officer” is included in this statute, and Congressional Committees perform legislative oversight, and not a law enforcement function. However, if this investigation were to be taken up by the Department of Justice, then it would be a law enforcement officer doing the questioning, and even if that’s secondary questioning after the DOJ takes up an investigation based on the findings of and evidence compiled by the January 6th committee, this section would still apply. Because the action of obtaining the warrants must be signed off by a Federal Judge, members of the January 6th committee can avoid this equivocation by requesting the assistance of the Department of Justice in the warrant application process, and the detailing of law enforcement officers to the investigation, so that the agents submitting the warrants and collecting the metadata regarding Republican Lawmaker’s electronic communications are Federal Law Enforcement agents, and not Congressional staffers.

18 USC § 371 states that: “If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.” This section applies because McCarthy and Greene have clearly, and publicly conspired in an attempt to intimidate potential witnesses in a Federal investigation, for the purpose of pre-empting the delivery of information pertinent to a Congressional Committee investigation. The relevant precedent to this section comes from the Supreme Court case Hammerschmidt v. United States and reads: “To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.” There is no question that Congress has a legal right to investiate any involvement by members of Congress in an attack on the Capitol building. As such, there is no question that seeking to obstruct that investigation by false claims that telecom companies might be breaking the law by complying with subpeonas, or threatening retribution against those companies for cooperation with a Federal investigation constitutes an attempt to “…to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery.” There is absolutely no ambiguity here, and McCarthy and Greene are both clearly, and very publicly guilty.

18 USC § 1505 states: “Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress – Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.” In this case, it couldn’t be more obvious that McCarthy and Greene are guilty based on a plain language reading of this statute. Legal precedent requires that for this section to be applicable, three elements must be present: First, there must be a pending proceeding or Congressional inquiry that is ongoing at the time the offense occurred; second, the potential defendants must be aware of said proceeding, and third, there must be a material act that was clearly intended to obstruct, delay or pre-empt completion of said proceeding or inquiry. All three elements of this statute are clearly present, and because the January 6th insurrection is clearly regarded by both President Biden and many other government leaders as an act of domestic terrorism, McCarthy and Greene would both face the prison term of 8 years, rather than 5.

American Democracy will not survive so long as Republicans are able to continue attacking our elections, the rule of law, and even our Federal buildings. Failure to impose consequences on rogue actors like Kevin McCarthy and Marjorie Taylor-Greene invites the end of our Great Experiment, and the nation’s devolution into an authoritarian nationalist state. Minor “slap on the wrist” punishments like Congressional censure are not only ineffective, but they are badges of honor for the far right who boast of their censure as proof that the “establishment” is scared of them for standing up for Trump and speaking “the real Truth”. If we are serious about protecting our Democracy then only the most extreme punishments will do. This is not a time for thinking that if we go easy on people who want to overthrow our Democracy that maybe they will calm down and learn to behave themselves. Kevin McCarthy and Marjorie Taylor-Greenee very clearly engaged in an effort to intimidate potential Federal witnesses as part of a conspiracy to obstruct the investigation being conducted by the January 6th committee. A brief review of 18 USC §§ 1513e, 371 and 1505 demonstrates that the defendants are clearly, obviously and publicly guilt of having violated all three sections of our Federal Law. The maximum penalty for their crimes, if their sentences were served consecutively would be 23 years in Federal Prison, and you can be absolutely sure that’s the penalty that Republicans would seek for a Democrat who enagaged in similar actions.