What Does A Jan. 6 Committee Subpoena Mean For Donald Trump?

The bipartisan House committee investigating the attack on the U.S. Capitol on Jan. 6, 2021, unanimously voted Thursday to subpoena former president Donald Trump. The move marked the culmination of the committee’s year-and-a-half-long investigation.

Here’s what to know about congressional subpoenas – and both their powers and limitations.

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First, what is a subpoena?

A subpoena is most commonly known as a court-ordered request to hand over property or to show up in court. Like courts, Congress has subpoena powers, and can, for example, demand that people sit for interviews in front of its committees and turn over documents.

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What is this specific subpoena demanding?

The committee voted unanimously to subpoena Trump to submit documents and provide testimony concerning the events of Jan. 6, 2021.

Committee Chairman Bennie G. Thompson (D-Miss.) said it’s the panel’s “obligation” to seek Trump’s testimony since he is “the one person at the center of the story of what happened on January 6th.”

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Can Trump refuse to comply with the subpoena?

Yes. A person who is subpoenaed has an opportunity to not comply. But the decision to disregard a subpoena can have consequences.

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So what happens if he does refuse?

Lawmakers could ask the Justice Department to charge Trump with contempt of Congress. Stephen Gillers, a professor of constitutional law at New York University, noted that federal prosecutors may refuse such a request. Alternatively, the department could add contempt to later charges “if it indicts him,” Gillers said.

Contempt of Congress is a rarely-used criminal statute meant to ensure that people comply with congressional subpoenas. The case of Steve Bannon, the right-wing podcaster and longtime Trump confidant, provides a road map of what could happen.

In July, Bannon was convicted of contempt of Congress for his refusal to provide documents or testimony to the Jan. 6 committee. Bannon’s sentencing is scheduled for Oct. 21. Each of the two misdemeanor charges is punishable by at least 30 days, and up to one year, in jail.

No one has been incarcerated for contempt of Congress in more than half a century, since the red-baiting hearings of the Cold War era.

Stanley Brand, a former counsel to the House of Representatives who has represented some of the Jan. 6 witnesses, said it would be legally complicated to enforce a subpoena of a former president.

“There is a very low probability we will ever see it happen,” Brand said. “How do you make a case for needing to do this when you are a legislative body, not a grand jury – though it has been acting like one?”

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Has Trump responded to the subpoena vote?

Trump lambasted the work of the committee in a 14-page letter made public Friday to its chairman but was silent on whether he would comply with a subpoena demanding testimony and documents.

“Despite very poor television ratings, the Unselect Committee has perpetuated a Show Trial the likes of which this Country has never seen before,” Trump said in the letter to Rep. Bennie G. Thompson (D-Miss.).

The letter, which opened with a claim that the 2020 presidential election was “RIGGED AND STOLEN,” repeated many of Trump’s false claims about voter fraud in various states. Trump claimed he could point out more discrepancies but was constrained by time.

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Can Trump fight the subpoena in court?

In theory, Trump could challenge the subpoena in court, said Gillers. That would trigger a repeat of a legal battle that unfolded again and again in federal courts during his presidency: Can Congress enforce its demands that top executive branch officials – and in this case, the former president himself – testify before lawmakers?

A fight over a 2019 House Judiciary Committee subpoena to former White House counsel Donald McGahn – considered a star witness in former special counsel Robert S. Mueller III’s report on Russian interference in the 2016 election – stretched over two years as he staged legal battles so he didn’t have to testify. An appeals court ruled against the House, and the incoming Biden administration reached a compromise, which required McGahn to transcribe answers to questions behind closed doors.

The Supreme Court sided with Congress and the Biden administration on a similar issue in January, ruling that Trump could not prevent the House committee from obtaining hundreds of pages of his White House’s communications and records leading up to Jan. 6. (More than a dozen witness subpoenaed by the House Jan. 6 committee have pending lawsuits challenging those subpoenas.)

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If the courts get involved, how long will it take to get a ruling?

Any legal proceedings that emerge from this subpoena could drag on for months. And that could be a win for Trump. If Republicans take control of the House in January, they will likely dissolve the Jan. 6 committee, rendering the subpoena meaningless, legal experts said.

“If the House flips, the committee will not be revived,” Gillers said. “If the House flips but the Senate does not, the Senate could create a committee to take over the House investigation and reissue the subpoena.”

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So does this subpoena have any teeth?

It could, but legal experts warn that it also may end up being more of a symbolic move. Gillers said the subpoena may be the committee’s way of giving Trump a formal opportunity to respond to its work, even if it does not expect Trump to show up.

“I suspect that the committee will not try to enforce the subpoena,” Gillers said. “What it is saying with the subpoena is ‘here’s your chance.'”

(c) 2022, The Washington Post · Perry Stein, Tom Hamburger, Spencer S. Hsu