The House select committee investigating the attack on the U.S. Capitol on Jan. 6, 2021, is expected to issue a subpoena for testimony and documents from Donald Trump before the end of the week, wading into what could be a prolonged and unprecedented legal battle with the former president.
If Trump resists the subpoena, the committee faces a number of hurdles in compelling him to comply that could ultimately end in a constitutional showdown, according to legal experts and congressional counsel with experience in congressional oversight and investigations.
Trump has told advisers that he’d potentially be willing to testify live before the committee, according to people familiar with his thinking who spoke on the condition of anonymity to discuss private conversations. But in a 14-page response to the committee last week, Trump declined to say whether he’d cooperate with the subpoena and instead repeated false claims of fraud in the 2020 presidential election — baseless allegations that fueled the attack on the U.S. Capitol.
Some on his legal team privately have said allowing their client to testify in any capacity would be a mistake. And multiple advisers say they don’t actually expect him to go through with testifying.
“[The committee] won’t allow him to testify live anyways because the number one priority of this committee is to control the narrative,” a person familiar with the Trump’s legal team’s thinking said.
Lawmakers, however, described the choice to subpoena the former president — with little historic precedent — as a necessary prerequisite to completing their 14-month investigation.
“We are obligated to seek answers directly from the man who set this all in motion,” the committee’s vice chair, Rep. Liz Cheney (R-Wyo.), said at the conclusion of last week’s hearing. “And every American is entitled to those answers, so we can act now to protect our republic.”
Committee members have maintained that they have yet to resolve how to enforce the expected subpoena. But legal experts say the most expeditious way forward for a committee up against a deadline is moving to refer a criminal contempt citation against Trump to the Justice Department.
A congressional subpoena can only be enforced through the life of that Congress, which means that if Republicans take back the House majority in November, and the select committee is not reconstituted when the new Congress is sworn in in January, the legal effort to enforce the subpoena would halt.
“After a witness refuses to appear, then the next best step is for the House to vote on a contempt citation,” a Democratic congressional staffer who works on investigations said, speaking on the condition of anonymity to discuss sensitive legal theories. “If we hold the House, it’s a live civil case, but that’s not guaranteed.”
The full House has so far referred four criminal citations — for Stephen K. Bannon, Peter Navarro, Mark Meadows, and Dan Scavino Jr. — to the U.S. attorney for defying the committee’s subpoenas. But of those referrals, Attorney General Merrick Garland has only pursued prosecution against Bannon and Navarro. Most recently, federal prosecutors recommended to a judge that Bannon serve six months in prison for refusing to cooperate with the committee investigating the insurrection. If that recommendation is followed, Bannon would be one of the first people to go to prison for contempt of Congress since 1948.
Still, legal experts and lawyers representing clients involved in the investigation surmise it’s unlikely that the Justice Department would prosecute Trump for contempt of Congress.
“Congress is not a grand jury. It doesn’t need to establish a factual basis for legislative function the way a grand jury does. So what is the basis for subpoenaing Trump?” said Stanley Brand, a former counsel to the House who has represented some of the Jan. 6 witnesses. “Does the Biden Justice Department really want to move to enforce a subpoena? What do they think will happen when Republicans take over the House? There is life after Trump, in the governmental sense.”
But others argue that if Trump refuses to comply — and makes no effort to provide any information to the committee, akin to Navarro and Bannon — then the Justice Department might have a stronger case to pursue prosecution.
Former president Harry S. Truman, for example, received a congressional subpoena in 1953 from the House Un-American Activities Committee after he was accused of appointing an official whom he knew was a Russian spy. Truman denied the accusation, and the House declined to take action to enforce the subpoena. But Praveen Fernandes, the vice president of the Constitutional Accountability Center, noted that Truman later cooperated with congressional oversight efforts and argued that Trump’s sweeping defiant posture could have repercussions.
“Truman might not have complied with that subpoena, but he then appeared before Congress half a dozen times in the mid- to late 1950s,” Fernandes said. “This is different in that Trump has demonstrated a pattern of a wholesale refusal to cooperate with investigative authorities. And in conversations about precedents, folks should focus on the serious criminal behavior that is unprecedented of a former president who tried to thwart the will of the American electorate and interfere with the peaceful transition of power.”
Lawmakers and committee lawyers spent the days since last week’s hearing carefully crafting the subpoena language, closely studying case law about subpoenas to current and former presidents, according to people familiar with the work.
Among those cases they’ve examined is Trump v. Mazars. However, that legal battle — sparked by the House Oversight Committee’s subpoena for records of Trump’s personal financial dealings from the longtime accounting firm that no longer works with him — has been winding through the courts since 2019. It was only last month that the committee reached a settlement with Trump and Mazars to obtain the financial documents.
Trump’s legal team is considering filing a lawsuit contesting the committee’s ability to force the former president to testify ahead of the deadline provided to comply with the subpoena, according to people familiar with the matter. Timothy Parlatore is a member of his team handling litigation related to the Jan. 6 attack and has a track record of filing similar lawsuits for other clients who have been subpoenaed by the committee, including Doug Mastriano, Pennsylvania’s Republican nominee for governor, and former New York City police commissioner Bernard Kerik.
Mastriano filed a lawsuit against the committee after they subpoenaed him this year. The lawsuit argued that because the committee does not have any members appointed by House Minority Leader Kevin McCarthy (R-Calif.), the committee does not comply with House rules and cannot compel testimony from a witness.
The U.S. Court of Appeals for the D.C. Circuit and several other judges have so far rejected such challenges. Trump appointee Timothy J. Kelly ruled in May against the Republican National Committee’s lawsuit against House Speaker Nancy Pelosi (D-Calif.), writing that the court disagreed with concerns about the structure and legitimacy of the committee outlined in the suit.
Still, the tactic could tie the issue up in the courts through the end of the 117th Congress and discourage the committee from pursuing a criminal contempt citation against Trump. But some lawyers say the committee could counter Trump’s legal strategy by pursuing a contempt citation anyway.
“One option, although it is a very aggressive one, is to say out loud what everyone knows is going on here: This is a baseless lawsuit that is simply a delay game,” said Norman Eisen, a senior fellow at the Brookings Institution who served as counsel to House Democrats for Trump’s first impeachment and Senate trial, of the potential for Trump’s lawsuit. “You could put that in a contempt resolution and make the contempt referral taking that into account … It’s not clear the Justice Department would proceed, but on the plus side, there would be a live criminal contempt referral sitting at DOJ when Trump eventually loses this lawsuit — as he surely will.”
“All of that being said, if I were advising the committee, I would probably tell them that strategy is too clever by half,” Eisen added.
When asked about next steps during an interview on Tuesday, Cheney said during remarks at a Harvard Institute of Politics forum that if Trump doesn’t comply with the subpoena, the committee will take the appropriate next steps.
“But I don’t want to go too far down that path at this point,” she added.
Josh Dawsey contributed to this report.