Trump subpoenaed by the January 6 committee. Now what?
(CNN) — The House January 6 committee took the extraordinary and theatrical step of voting to subpoena former President Donald Trump on Thursday.
A coda to its public hearings, the subpoena might not lead to Trump’s testimony and handing over of documents, but it will act as a teaser for what’s to come.
The committee still has a report to publish and could also request that the Justice Department pursue charges against Trump or his former aides for their roles in helping to incite the attack on the Capitol and their efforts to overturn the 2020 election.
As the subject of a congressional subpoena, it must be painfully clear to Trump that he is a former president. Just another citizen. The kind who can be issued a subpoena.
“They are trying to make the case that Trump is Oz,” said CNN’s John King, interpreting the committee’s subpoena of Trump. “He presents himself as all powerful, but when you look, it’s actually a little guy behind a curtain trying to pull a machine.”
Trump could decide to comply. The committee would then negotiate a time, place and method. That would take time.
If he refuses to comply with the subpoena, here’s what could happen:
- Contempt. The full House, which is controlled by Democrats until at least January, could vote to hold him in contempt of Congress, something it’s done with several other uncooperative witnesses.
- Referral. After a contempt of Congress referral, the Justice Department could then prosecute, as it did with Trump’s former aide Steve Bannon and plans to do with his once economic adviser Peter Navarro.
- Prosecution. If found guilty, as Bannon was, Trump could theoretically face a minimum of 30 days in jail. Bannon will be sentenced for failing to comply with the House subpoena later this month.
This sequence of events seems far-fetched for Trump.
“None of that is going to happen,” the Trump critic and conservative lawyer George Conway predicted during an appearance on CNN Thursday. “This is about laying a marker. This is about triggering a response (from Trump).”
Trump responded on social media, calling the committee a “BUST” and a “laughing stock” and accusing members of dividing the country.
Conway did point out the Supreme Court has already made clear where it stands on Trump’s status as a former president when it ignored his attempt to block the National Archives from sharing information with the committee.
The court, notably, also declined on Thursday to intervene on Trump’s behalf in the Mar-a-Lago classified documents inquiry.
But the Justice Department, rather than go after Trump for ignoring congressional subpoena, if it comes to that, has arguably larger and more important inquiries that involve his treatment of classified documents after he left the White House and his effort to overturn the election as president.
Rep. Liz Cheney of Wyoming said the January 6 committee feels it has enough information to make referrals to the Department of Justice for prosecutions stemming from the committee’s work. And she noted that more than 30 witnesses have invoked Fifth Amendment protections against self-incrimination with regard to their dealings with the former President.
Cheney, who serves as vice chair of the House committee, singled out people who invoked the Fifth Amendment or refused to testify rather than elaborate on their communications with Trump on January 6, 2021, including:
- Roger Stone, the provocateur and Trump confidante who helped organize some events that day. Trump previously pardoned Stone in a different matter.
- Another recipient of Trump’s pardon, retired Lt. Gen. Michael Flynn, who fueled conspiracy theories after the 2020 election.
- The mastermind of Trump’s plan to overturn the Electoral College count, John Eastman.
- Trump’s ally at the Justice Department, Jeffrey Clark, and Trump’s then-Chief of Staff Mark Meadows.
Presidents who gave congressional testimony
While presidents and former presidents have testified before congressional committees, they’ve always done so voluntarily.
Most recently, in 1974, Gerald Ford testified voluntarily as president before a House subcommittee about his decision to pardon former President Richard Nixon.
Ford later testified as a former president in 1983 to a Senate subcommittee. That hearing, 39 years ago, was the last time a president took questions from lawmakers in the committee setting, according to the Senate Historical Office and Senate Library.
Presidents who were subpoenaed
President Thomas Jefferson declined to appear at former Vice President Aaron Burr’s trial for treason even though he was subpoenaed by then-Chief Justice John Marshall. Jefferson did ultimately provide some documents. Burr was eventually acquitted.
President Bill Clinton sidestepped a subpoena by voluntarily appearing before Whitewater investigators.
Nixon’s resignation from the presidency made his Watergate subpoena moot.
But Trump is no longer president
The case with Trump is very different. For starters, it is a congressional committee, not a court or a prosecutor issuing the subpoena.
Also, Trump is no longer president.
Back when he was president, the Supreme Court punted in 2020 when it sent a dispute over House subpoenas for Trump’s financial records back to lower courts. Justices told lower courts to consider separation of powers even in cases involving the president’s private information. The House Oversight Committee recently reached an agreement with Trump to get access to the documents.
The Supreme Court did rule New York investigators could get access to the financial documents. Trump’s company will go on criminal trial this month on charges of violating tax laws.
Trump testified in a civil case. He took the Fifth
If Trump testifies to House investigators, it would actually be his second time answering questions before lawyers this year.
A judge forced him to comply with subpoenas from New York Attorney General Letitia James as part of her civil inquiry into his business practices. He invoked the Fifth Amendment protection against self-incrimination during that deposition.
Trump, his three oldest children and the Trump Organization were subsequently sued by James. On Thursday, James asked a state court to block Trump from moving assets to shield them from the lawsuit.
All of those battles have dragged on for years, a timetable that the House January 6 committee doesn’t have. The Justice Department will not publicly engage in any activity this close to an election, and voters could well hand control of the House to Republicans in November.
That means the January 6 committee must plan to wrap up all of its work by January 3, 2023, when the next Congress begins and the January 6 committee may be no more.
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