The congressional committee investigating the Capitol riot moved Thursday to force a showdown with Donald Trump, voting to subpoena the former president to testify and turn over documents about his efforts to undermine the 2020 election results.
Legal experts say they expect Trump to refuse to comply, and that there’s little the committee can do about it. Lisa Kern Griffin, a professor at Duke University School of Law, described the vote as “symbolic.”
“It is understandable that they would make that move, and it underscores their point that he was the driver behind the violence and aware of all of the efforts to overturn the election,” said Griffin, who has taught on the presidency and criminal probes. “But subpoenaing him is a gesture. It will not result in any testimony from the former president.”
If Trump challenges the subpoena in court, or if the committee sues to enforce it, the legal fight could take years by raising largely untested questions about immunity for presidents in and out of office. The US Justice Department brought contempt charges against two witnesses who defied Jan. 6 subpoenas, but chose to not prosecute others, so Trump also could take his chances by simply not showing up.
Any subpoena issued by the committee will expire at the end of the congressional term. And if Republicans take control of the House in the midterm elections next month, GOP leaders are expected to end the committee’s work, likely making any subpoena fight moot.
The Jan. 6 committee hasn’t set a date for Trump to testify or produce documents. Representative Jamie Raskin, a California Democrat, told CNN members hadn’t discussed what they would do if Trump refused to comply.
The former president didn’t take long to respond.
“Why didn’t the Unselect Committee ask me to testify months ago?” Trump wrote in the post on his Truth Social platform Thursday. “Why did they wait until the very end, the final moments of their last meeting? Because the Committee is a total ‘BUST’ that has only served to further divide our Country which, by the way, is doing very badly – A laughing stock all over the World?”
Multiple former Trump administration officials and allies have spent months in federal court fighting the committee’s efforts to gather emails and phone records, arguing that they can’t be forced to testify.
A challenge by Trump’s former Chief of Staff Mark Meadows has been pending for nearly a year. A judge heard arguments in September but has yet to rule. Even if a decision comes before the end of the year, it could be appealed and ultimately got to the US Supreme Court, adding months or even years to the litigation.
If Trump seeks to resist the subpoena in court, he’d likely invoke longstanding Justice Department policies that protect presidents — even after they leave office — from being forced to testify, said Jonathan Shaub, a professor at the University of Kentucky J. David Rosenberg College of Law and former attorney-adviser in the Justice Department’s Office of Legal Counsel.
In a 2007 memo, the Office of Legal Counsel pointed to the example of former President Harry Truman, who refused to comply with a subpoena from the House Committee on Un-American Activities. Truman wrote in a letter at the time that, “if the doctrine of separation of powers and the independence of the Presidency is to have any validity at all, it must be equally applicable to a President after his term of office has expired when he is sought to be examined with respect to any acts occurring while he is President.”
On Page one of the link to the PDF, President Truman gives his response.
In layman’s terms, separation of powers.
Justice Department policy isn’t binding on judges and there are no past court cases to point to as legal precedent for a former president refusing a congressional subpoena to testify.
Risk of Prosecution
Still, longtime Trump ally and adviser Steve Bannon was successfully prosecuted for contempt of Congress when he refused to comply with a Jan. 6 committee subpoena. Prosecutors also are pursuing a case against former White House trade adviser Peter Navarro.
But former Trump Chief of Staff Mark Meadows and former top White House communications deputy Dan Scavino didn’t face prosecution for their refusal to honor subpoenas, even after the committee made criminal referrals to the Justice Department.
“I don’t think he’s really afraid of contempt,” Shaub said of Trump.
The former president has lost several legal fights with Congress over demands for documents, but this is the first time he’s faced a direct subpoena to testify.
Earlier Supreme Court rulings involving Trump-related investigations — including a congressional demand for information about his finances and a grand jury subpoena out of New York — took account of his status as a sitting president, which he no longer holds.
A years-long fight over Congress’ efforts to subpoena testimony from former White House counsel Don McGahn ended last year with a voluntary agreement by McGahn to testify, which left no definitive precedent for how to resolve such conflicts in the future.
If Trump should unexpectedly decide to appear before the committee, there’s a good chance his lawyers would advise him to invoke the Fifth Amendment’s protections against self-incrimination, Kimberly Wehle, a visiting professor at American University Washington College of Law, wrote in an email.
“It’s being done more for the record and for the American people — for the history books — because it’s highly unlikely it will actually produce testimony by the former President,” Wehle said.