House Minority Leader Kevin McCarthy has announced that he will not cooperate with the committee that is ‘investigating’ the Amble Around the Capitol™️ on January 6 of last year.
I think he’s missing an opportunity here.
If you recall, the FBI recently sent a spokesperson to a Senate hearing on that same event. Every time Senator Ted Cruz asked her a question — and they were pretty simple questions, to which she clearly knew the answers — she just said, ‘I can’t answer that question.’ And Cruz was willing to just let her skate.
Now, this is interesting, because as Professor James Duane has pointed out, one of Justice Scalia’s parting gifts before he left the bench was to guide the Supreme Court to the conclusion that it’s legitimate to interpret someone’s silence as a sign of guilt — yet another place where the oral Constitution diverges radically from the written one.
So remaining silent now means you’re guilty. And asserting your right to remain silent, while not technically remaining silent, also means you’re guilty.
But the FBI spokesperson took a slightly different tack. Instead of saying that she wouldn’t answer questions, she just said she couldn’t answer them, without any explanation for why that was the case. And the Senate seemed willing to just let her get away with that.
Apparently, I can’t answer that question is the new and improved version of I refuse to answer that question. It’s the new Fifth Amendment.
Instead of saying that he won’t cooperate with the committee, McCarthy should say: ‘Sure, I’ll cooperate. I’ll give you the same level of cooperation as the FBI.’ Then he should show up and just keep saying ‘I can’t answer that question’ until they get tired of asking questions.
And if Congress decides to hold him in contempt for refusing to answer? Well, there’s already a line forming over at the FBI…
