As you may have heard, the January 6 select committee has adopted a resolution authorizing its chair to issue a subpoena for documents and testimony under oath to former President Donald Trump. This action raises some legal, political and practical issues, which are considered below.
Is a former president immune from a congressional subpoena? The answer to this question is pretty clearly no. It has been well-established since Watergate that even sitting presidents are subject to judicial subpoena and, as the D.C. Circuit recently observed, its own precedent from that era “strongly implies that [sitting] Presidents enjoy no blanket immunity from congressional subpoenas.” Trump v. Mazars U.S., LLP, 940 F.3d 710, 722 (D.C. Cir. 2019), rev’d and remanded on other grounds, 140 S.Ct. 2019 (2020). It is therefore very unlikely that former presidents would be found to enjoy such blanket immunity.
Is a former president absolutely immune from compelled congressional testimony about his official activities? For reasons I have discussed before, the answer to this question should be no, although I acknowledge there are good reasons why Congress should be (and historically has been) reluctant to compel the appearance of former presidents except in extraordinary circumstances.
That being said, the Justice Department has long taken the view that former presidents are absolutely immune from compelled congressional testimony about their official activities. It recently reiterated this view in a filing regarding the efforts of former Trump chief of staff Mark Meadows to avoid testifying before the January 6 committee, and it seems unlikely it will change this view unless and until the courts force it to do so.
It should be noted, however, that the theory is limited to testimony about official activities. We may anticipate that the Justice Department is inclined to take a broad view of what constitutes the president’s official activities, but whether it is broad enough to cover all aspects of Trump’s efforts to overturn the election remains to be seen.
What are the select committee’s options for enforcing the subpoena? I think we can rule out inherent contempt, though it would be interesting to see what posture the Secret Service would take if the House Sergeant-at-Arms showed up at Mar-a-Lago to take the former president into custody.
A more politically palatable option would be civil enforcement, but lack of time may make this impractical. The select committee might have enough time to get a favorable ruling from a district court, but there is no way that the appeals process would be concluded before the end of the 117th Congress, when both the select committee and its subpoenas will expire. At that point it would take affirmative action by the House in the 118th Congress to keep the case alive, which will not happen if the Democrats lose control of the House.
Of course, if the Democrats retain control, a civil suit becomes a real possibility. In that eventuality the House would be well advised to seek a special jurisdictional statute for the suit (as happened when the Senate Watergate committee brought suit to obtain the Nixon tapes) so as to avoid the question whether the suit is covered by the general federal question statute.
Assuming civil enforcement is impractical, that leaves a criminal contempt certification to the Justice Department under 2 U.S.C. § 194. As noted earlier, whether the Department would be willing to prosecute Trump for refusing to testify is uncertain, and the better bet is that it would not. However, that still leaves the possibility Trump could be prosecuted for refusing to produce pertinent documents. Here it will matter a lot how Trump responds to the document subpoena. Presumably his lawyers will not let him just default like Steve Bannon. They will raise a series of objections, including but not limited to executive privilege. The more serious and thorough a job they do in preparing their objections and a privilege log, the more hesitant the Justice Department will be to view the response as criminal contempt.
Professor Jonathan Turley has suggested that even if the Justice Department proceeds with a criminal investigation and indictment, its prosecution of Trump would be derailed if “Republicans can take the House and rescind a contempt resolution.” I see no legal basis for this conclusion. The offense of contempt is complete when a witness commits the acts proscribed by 2 U.S.C. § 192 and the procedural requirements for prosecution are satisfied when the contempt report is certified under 2 U.S.C. § 194. The House cannot thereafter in effect pardon a contumacious witness by purporting to “rescind” a prior contempt certification.
To be sure, where a contumacious witness decides to cooperate after certification the House may determine that the witness has purged his contempt, and the Justice Department may decide to drop the matter for that reason. Even in that instance, however, this would be an exercise of prosecutorial discretion, not a legally required action, because purging after certification is not a legal bar to a contempt conviction.See CRS Rep. to Congress, Congress’s Contempt Power and the Enforcement of Congressional Subpoenas: Law, History, Practice, and Procedure 20 (May 12, 2017). The mere fact the House changes its mind about a prior contempt certification should certainly have no legal effect.
Is there anything the select committee could do to enhance the possibility of successful enforcement? One thing the select committee might want to consider is issuing a subpoena to Trump to require him to answer interrogatories, in addition to the subpoena for documents and testimony. By propounding specific written questions it wants Trump to answer, the committee could (1) highlight the importance of these questions to its investigation; (2) demonstrate the tenuousness of any connection between Trump’s actions regarding January 6 and his official duties; and (3) show that executive privilege is either inapplicable or overcome by the legislative need for the information at issue. Furthermore, because Trump could answer these questions without physically appearing before the select committee, propounding interrogatories would undermine much of the Justice Department’s traditional rationale for testimonial immunity.
It might be objected that the resolution adopted by the select committee at its October 13 business meeting did not authorize the chair to issue interrogatories. However, section 5(c)(5) of the resolution establishing the select committee already gives that power to the chair.
What are Trump’s options to respond to the subpoena? Some of these have already been discussed. He could ignore the subpoena entirely, which would be foolish and greatly enhance the likelihood of the Justice Department proceeding with a criminal certification. He could file objections to testifying and/or producing documents (in whole or in part). He could, of course, choose to appear and answer questions (this seems unlikely) or he could appear and assert his Fifth Amendment privilege (this seems even more unlikely).
Trump could also take a more proactive approach by filing a lawsuit against the select committee seeking an injunction against the enforcement of the subpoena and/or a declaration of its invalidity. This might be an attractive option for him if he wants to try to dissuade the House from proceeding against him with a contempt certification before the end of the Congress. The fact that the matter is before the courts might be enough to convince some House members that it would be unnecessary to proceed with a politically controversial criminal contempt.
The select committee could move to dismiss the lawsuit on the basis of the Speech or Debate Clause. The problem with this strategy is that it makes it appear that the committee is attempting to avoid a decision on the merits, which would give Trump a talking point both in the court of public opinion and in any House debate over whether it should move forward with a contempt certification. Here it should be noted that in the lawsuit brought by Mark Meadows the committee declined to assert Speech or Debate immunity, much to the annoyance of Judge Nichols.
If the court does reach the merits of this hypothetical lawsuit, it is likely that Trump will lose. However, once again the committee faces the problem of time. Assuming the Republicans take control of the House, once the 117th Congress expires the case will be moot and it will be too late to take any other enforcement actions. Thus, Trump’s lawsuit may be “successful” even if he loses on the merits at the district court level.
Even if the subpoena is not enforced and Trump provides no information, is there any advantage to the select committee from issuing the subpoena? Because the select committee presumably is aware that Trump most likely will not comply with the subpoena and that enforcement is a long shot, it may be assumed that it sees other benefits from issuing the subpoena. One obvious benefit is simply the symbolic effect of offering Trump an opportunity to tell his side of the story and his refusal to do so, which undoubtedly will be featured prominently in the committee’s final report.
It is also possible that some members of the committee see this as a way to communicate their views on other potential crimes committed by the former president. As we have noted before, there has been much discussion whether the committee will make a “criminal referral” to the Justice Department, and it appears there is some division within the committee itself as to whether such a referral (which would have no legal and probably little practical effect) is a wise idea. It may be that those on the pro-referral side think that a committee contempt report, which would have a legally operative effect, could also be a vehicle to lay out evidence of other crimes they believe that Trump committed. They may also believe, whether correctly or not, that this would be a more effective way of encouraging the Justice Department to proceed with a prosecution of the former president.
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