Northwest Arkansas Democrat-Gazette
Trump reacts to subpoena, attacks panel
Fight could take years if he doesn’t comply, experts say
WASHINGTON — Former President Donald Trump responded Friday to a promised subpoena from the House committee investigating the Jan. 6, 2021, riot with a lengthy, rambling letter that attacked the panel’s work, reiterated claims of widespread voting fraud and presaged a potentially bruising battle over whether he could be compelled to testify about his role in the riot and his efforts to subvert the 2020 election.
In a 14- page letter that did not address whether he would comply with the subpoena, Trump perpetuated the same claims that he made before the riot and boasted about the size of the crowd that had amassed to hear him speak before marching to the Capitol and staging a violent siege.
The former president has indicated privately to aides that he would be willing to testify to the House panel but would like to do so live, according to a person close to him, a prospect that would prevent video of him from being clipped or edited in a manner he dislikes. The letter he released Friday — a rehash of his many grievances and assertions — underscored the risks for the committee of giving Trump an unfettered public platform.
“The presidential election of 2020 was rigged and stolen!” the letter began in all capital letters.
Trump dedicated page after page to repeating that lie about the 2020 election, which he lost to President Joe Biden — a fact he has repeatedly refused to acknowledge.
“You have not gone after the people that created the fraud, but rather great American patriots who questioned it, as is their constitutional right,” Trump wrote in the screed. “These people have had their lives ruined as your committee sits back and
basks in the glow.”
Instead of providing what he claimed was evidence, he included appendices filled with assertions of widespread election irregularities that have been debunked, some by his former attorney general, William Barr, and other top Justice Department officials.
“A large percentage of American citizens, including almost the entire Republican Party, feel that the election was rigged and stolen,” Trump wrote, without mentioning that his claims were the reason the theory spread among the populace and have come to define the GOP.
He included aerial photographs purporting to show enormous throngs of people on the National Mall on Jan. 6, 2021 — reminiscent of the images that the White House released after his inauguration in 2017 — and again complained of what he claimed.
The letter emerged as the House committee, which had voted unanimously Thursday to subpoena the former president to testify and turn over documents about his efforts to undermine the 2020 election results. People close to the committee’s work said the panel was poised to issue the subpoena as soon as Monday.
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 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 inquiries. “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 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. 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.
Committee and staff members were discussing whether they would accept him testifying live. Those familiar with the discussions said the committee seemed open to the idea, believing the panel could most likely elicit some significant developments from Trump’s testimony.
Should Trump decline to appear, it could lead to a precedent- setting fight. Several former presidents voluntarily testified before Congress, but there is no Supreme Court precedent that says whether Congress has the power to compel a former president to testify about his actions in office.
Committee members said they believed Trump should want to comply with the subpoena.
“I want to believe again that every American citizen who knows something about these events would come forward to testify, and nobody knows more about them than Donald Trump does,” said Rep. Jamie Raskin, D- Md., a member of the committee.
The former president didn’t take long to respond.
“Why didn’t the Unselect Committee ask me to testify months ago?” Trump wrote Thursday in the post on his Truth Social platform “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 U.S. 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.”
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.
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 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 yearslong 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.
FINAL ACTION
The panel’s expected final action will be an expansive report laying out evidence, findings and legislative recommendations to ensure nothing like Jan. 6 ever happens again. But it’s unclear how much of its investigative material will be released to the public.
Rep. Bennie Thompson, D- Miss., the committee chairman, told reporters Thursday that he hoped Trump would comply but that he believed the panel compiled a comprehensive case of the events of Jan. 6 without the former president’s testimony.
“If we get his attention, fine,” Thompson said. “If not, we’ll go with the evidence we collected.”
The committee will also have to decide whether to refer any allegations of crimes to the Justice Department. While federal prosecutors are conducting their own investigations into Jan. 6 and Trump’s efforts to overturn the election, the congressional committee has its separate trove of evidence.
Lawmakers on the panel have hinted multiple times over the past year that they will issue criminal referrals.
Trump’s explosive reaction came the day after a hearing in which the Jan. 6 panel summed up its case against the former president, and presented remarkable behind-the-scenes video that showed top congressional leaders scrambling to secure the Capitol during the attack.
At the hearing Thursday, Rep. Liz Cheney, the committee’s Republican vice chairwoman, said the panel “may ultimately decide” to do so. The Wyoming congresswoman said they have “sufficient information to consider criminal referrals for multiple individuals.”
While such a referral would not force any action, it would amplify the political pressure on Attorney General Merrick Garland as the department pursues its own probes.
In another portion of the video released Friday to CNN, House Speaker Nancy Pelosi can be seen talking by cellphone to Vice President Mike Pence, asking about his well-being and advising him, “Don’t let anybody know where you are.”
The moment underscored the danger Pence faced as the rioters called for his execution and Trump insulted him on Twitter.
Trump never attempted to check on Pence, who had been evacuated from the Capitol just minutes before the mob flooded the area where he had been. But in a separate phone call sometime that afternoon, Pence’s chief of staff, Marc Short, reached out to Meadows to say that he and the vice president were safe, according to a person briefed on the exchange.
During the call, Short said they believed the counting of electoral votes should resume that night and Meadows agreed, the person said. But when Meadows asked where the vice president was, Short declined to provide specifics, saying only that they were around the Capitol.