McCarthy’s office would not provide CNN with a specific federal statute that a company would be in violation of if it complied with a duly empaneled congressional committee.
California Democrat Eric Swalwell tweeted a strong response, writing, “McCarthy just made the Congressional equivalent of a ‘Snitches Get Stitches’ threat. When people do that in our communities we hold them accountable. If we have no law and order we’ve lost everything.”
In a statement to CNN, Swalwell went even further, saying: “I think we should consider a criminal referral for witness tampering/intimidation and obstruction of justice. I’ve prosecuted people for doing less on smaller scale cases.”
McCarthy’s threat to companies could run afoul of a House rule prohibiting members from acting in ways that discredit the House, according to ethics rules expert Norm Eisen.
Eisen, who was a Democratic adviser for the first Trump impeachment, said McCarthy’s threat could violate House rule 23, which says members “shall behave at all times in a manner that shall reflect creditably on the House.”
“What can be more discreditable then the leader of the House minority openly shaking down companies to break the law and hide evidence from a legitimate investigation that may implicate him and his colleagues”” Eisen asked in a phone interview.
Eisen said McCarthy’s threat amounts to a “clear basis” for an ethics probe. If the House Ethics Committee takes up the matter, it could always refer it to the Justice Department. But that process is done in secret and often takes months, if not years, to complete.
Eisen also acknowledged that the speech and debate clause of the Constitution could help shield McCarthy from any attempt to prosecute him. He also said that the reach of the clause’s protections to lawmakers has not been fully tested in the courts.
When asked whether he thought there should be an ethics complaint, Swalwell responded: “I think this is more serious than that.”
While the committee did not make public the names of the lawmakers whose records it is targeting, multiple sources familiar with the panel’s work have confirmed for CNN that the records of several members of Congress are among those the committee would like to be preserved.
The committee has not formally requested any documents, but instead has just asked that records be preserved in the event the probe requires them. McCarthy’s suggestion that cooperating with the committee could be illegal may make it more difficult for the committee to obtain records.
A committee spokesman said later Tuesday that the threat will not impact its work.
“The Select Committee is investigating the violent attack on the Capitol and attempt to overturn the results of last year’s election. We’ve asked companies not to destroy records that may help answer questions for the American people,” spokesman Tim Mulvey said in a statement to CNN. “The committee’s efforts won’t be deterred by those who want to whitewash or cover up the events of January 6th, or obstruct our investigation.”
McCarthy also accused the select committee of strong-arming private companies, specifically naming in his statement committee Chairman Bennie Thompson, a Mississippi Democrat, House Speaker Nancy Pelosi and Rep. Adam Schiff, both California Democrats.
It is unclear what means the committee will use to compel the telecommunications companies to cooperate with their request. The committee does have subpoena power, but requesting the information — especially from members of Congress — could lead to a lengthy legal battle.
As CNN previously reported, McCarthy’s name was notably not on the initial list of names the committee sent to the companies for records preservation, according to sources.
Still, the contents of the congressman’s call with Trump during the height of the riot are expected to be of great interest to the committee, and Thompson has repeatedly not ruled out calling McCarthy to testify in front of the committee if that is where the investigation leads.
This story has been updated with additional developments Wednesday.
CNN’s Melanie Zanona, Manu Raju, Zachary Cohen and Whitney Wild contributed to this report.