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September 7, 2021
One Hundred Seventeenth Congress
Select Committee to Investigate the January 6th
Attack on the United States Capitol
U.S. House of Representatives
Washington, D.C. 20515
Re: Select Committee 8kun Inquiry
Chairman Thompson and Members of the Committee:
We write in response to your letter dated August 26, 2021 asking 8kun to produce a broad range of
information related to “[m]isinformation, disinformation, and malinformation related to the 2020
election.” Without doubt, it is the duty of all citizens to cooperate with congressional efforts to obtain
relevant facts needed for legislation. Equally so, it is incumbent upon Congress to respect the
constitutional rights of the witnesses it calls upon. To be more direct, the “Bill of Rights is applicable
to investigations as to all forms of governmental action.”1
8kun will respond to appropriate requests issued by this Committee. But as the Supreme Court
reminded Congress just last year, congressional investigatory and subpoena requests are valid only
when they are “related to, and in furtherance of, a legitimate task of Congress and must serve a valid
legislative purpose.”2 Because of constitutional and pertinence concerns, we seek to narrow and better
identify the information this Committee would like produced.
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Introductory Constitutional Principles
Congress has sporadically wrestled with contentious issues of the day by means of investigatory
committees. Unfortunately, Congress also has a history of abusing that power through targeting
disfavored political actors and associations.3 This is forbidden by the First Amendment and the Due
Process Clause of the Fifth Amendment to the Constitution.
4
a. New Deal and “Un-American Activity” Analogues
The D.C. Circuit Court of Appeals and Supreme Court struck down congressional investigatory
attempts to chill political speech and association in U.S. v. Rumely. There, the New Deal Congress was
1 Watkins v. U.S. (“Watkins I”), 354 U.S. 178, 197 (1957). 2 Trump v. Mazars USA, LLP, 140 S.Ct. 2019, 2031 (2020).
3 Barsky v. U.S., 167 F.2d 241, 263 (D.C. Cir. 1948) n.8 (“‘Hollywood Fires 10 Cited in Contempt. Film
Heads Rule They Must Swear Theyre Not Reds To Be Rehired’. Washington Post, Nov. 26, 1947, . 1,
col. 4.”).
4 See Rumely v. U.S., 197 F.2d 166, 173 (D.C. Cir. 1952) (Congress “represents the people, and its power
comes from the people. It is not a source or a generator of power; it is a recipient and user of power”);
see also U.S. v. Rumely, 345 U.S. 41, 46 (1953).
2
irritated with the conservative agitator Dr. Edward Rumely and the Committee for Constitutional
Government (“CCG”). They organized business opposition to New Deal legislation, perhaps too
effectively.
5 The House Committee on Lobbying Activity demanded the names of anyone who
purchased books, pamphlets, or other literature from CCG.6 The D.C. Circuit found this inquiry to
be outside the power of Congress.7
The Court concluded the House Committee could never be constitutionally empowered to generally
investigate all aspects of lobbying. It could investigate particular abuses, particular people, particular
records, or particular criminal endeavors. But the First Amendment would forbid Congress from
examining, publicizing, or reporting the “names and addresses of purchasers of books, pamphlets and
periodicals” because that would serve as a “realistic interference with the publication and sale of those
writings.”8 The investigation into Rumely and CCG suffered from another malady: the congressional
mandate to investigate was flawed. Congressional desires to examine attempts to influence, encourage,
promote, or retard legislation or to influence public opinion are simply void under the First
Amendment.9
Courts have sometimes upheld limited inquiries where authorizing resolutions are sharply focused
about threats to overthrow the government. But the congressional power to investigate even serious
threats to overthrow the government is not limitless. In Watkins I, Congress stressed the urgency of
its need to root out domestic extremists and to “be informed of efforts to overthrow the Government
by force and violence so that adequate legislative safeguards can be erected.”10 But the Supreme Court
cautioned that broad congressional authorizations for investigations could produce disastrous results:
From this core, however, the Committee can radiate outward infinitely to any topic
thought to be related in some way to armed insurrection. The outer reaches of this
domain are known only by the content of ‘un-American activities.’ Remoteness of
subject can be aggravated by a probe for a depth of detail even farther removed from
any basis of legislative action. A third dimension is added when the investigators turn
their attention to the past to collect minutiae on remote topics, on the hypothesis that
the past may reflect upon the present.