On Friday, November 11, former President Trump filed suit against the January 6 committee to prevent enforcement of the subpoena for documents and testimony the committee issued to him on October 21. The complaint asserts that as a former president Trump is absolutely immune from compelled congressional testimony (at least outside the realm of impeachment). In addition, it alleges that the subpoena is invalid for a number of reasons, including that it was not issued for a valid legislative purpose, that it fails the heightened standard of scrutiny established by the Supreme Court for subpoenas of presidential information, and that the January 6 committee lacked authority to issue subpoenas because it was improperly constituted.
All of these claims, in my view, should lose, and I think they all probably would if the litigation ever resulted in a final judgment on the merits. However, as Trump’s lawyers well understand, there is very little chance of that happening before the January 6 committee expires at the end of this Congress, which will most likely moot the case. For Trump’s legal team, the advantage of this lawsuit is that it will buy time and possibly forestall a contempt vote in the House.
Trump’s legal team is taking a cautious approach to responding to the subpoena, suggesting they view it as presenting real legal risks to their client. In letters to the committee on November 2 and November 9, Trump attorney David Warrington raised various objections to the subpoena but suggested a willingness to comply with at least aspects of the document requests. In fact on November 9 Warrington represented that in regard to limited versions of two of the document requests “President Trump has voluntarily directed a reasonable search for documents in his possession,” although (conveniently) no responsive documents were located.
[Note: the “November 9” letter is dated November 9 on the first page, but the header is dated November 4. I assume that the date on the first page is the correct one, although I note that the complaint does not identify a date for that letter, despite doing so for other correspondence.]
The complaint claims that “President Trump has sought to resolve disputes regarding the Committee’s demands through the ‘political process’ and through negotiation with the Committee.” Complaint ¶72. It even suggests, without quite saying, that Trump and the committee have a constitutional obligation to attempt to resolve information disputes through negotiations and mutual accommodation. Complaint ¶71. (Notably it makes no mention of the letter that Trump sent personally to the committee on October 13, after the committee voted to issue the subpoena, which contained no hint of conciliation or any interest in compliance).
The filing of this lawsuit is further evidence of a cautious approach. Indeed, it is a little surprising that Trump’s lawyers felt a need to file this suit prior to their client’s scheduled deposition on Monday. As I explained here and on Lawfare, the Justice Department agrees with the legal position Trump is taking in regard to his deposition, namely that a former president is absolutely immune from compelled congressional testimony regarding his official activities and is not obligated to appear in response to a congressional testimonial subpoena. Therefore, one would expect DOJ to decline to prosecute Trump for contempt if he simply refused to show up for his deposition on grounds of absolute immunity (and the House subsequently cited him for contempt).
Perhaps this is a sign DOJ is taking a more aggressive approach in either or both of its two major investigations of the former president (regarding January 6 and his mishandling of classified documents and presidential records). Trump’s lawyers may fear that DOJ could take the position that absolute immunity is inapplicable because the committee is seeking testimony on matters beyond the scope of official activities. In this regard it is noteworthy that the complaint makes a point of emphasizing that the subpoena seeks information regarding Trump’s official actions as president. See Complaint ¶66 (The subpoena “leaves no doubt that its focus is on President Trump’s actions as President.”) (emphasis in original); see also id. ¶¶67-70.
On the other hand, it may be that the timing of the lawsuit is something of a ruse. Trump’s lawyers may be less worried about the testimonial subpoena than the document subpoena. As I have pointed out, there is greater legal risk in refusing to comply with the document subpoena, but there is also risk in producing documents (apart from potentially incriminating content) because it could require Trump to acknowledge having documents that he should not have kept (and should have previously returned to the National Archives or produced in response to a grand jury subpoena). It also may require Trump’s lawyers to make a decision as to whether responsive documents should be characterized as official or personal, which they may prefer to avoid. (In this connection it is interesting that the complaint, in contrast to similar suits Trump has filed in the past, does not specify whether it is brought in his personal or official capacity).
Thus, while Trump’s lawyers have expressed (or feigned) a willingness to reach an accommodation with the committee regarding documents, it is noteworthy that they have failed to produce a single responsive document despite having had the subpoena for more than two weeks. By filing suit now they have provided themselves an excuse to delay any further efforts to search for or produce documents, presumably with the hope that they can run out the clock until the January 6 committee expires.
So how should the January 6 committee respond? The first question it must address is whether to assert Speech or Debate as a defense to the lawsuit. Although this would entitle the committee to dismissal of the suit, it would not necessarily get the committee any closer to obtaining the testimony and documents it seeks. Trump would simply claim that he had sought a judicial ruling on the merits and, because the committee had blocked him from obtaining it, had no choice but to refuse to comply with the subpoena based on his understanding of the law and executive prerogatives.
For this reason the committee has sometimes declined to assert Speech or Debate in response to lawsuits brought by witnesses contesting its subpoenas. In the lawsuit brought by Mark Meadows, however, Judge Nichols found the suit barred by Speech or Debate even though the committee did not assert it, holding that the question was jurisdictional in nature and therefore must be addressed by the court even if not raised by the parties. Judge Nichols did not decide whether or not Speech or Debate could be waived, but found that it had not been waived by the committee in that case.
It would not seem to be in the committee’s interest to dismiss Trump’s lawsuit with regard to testimonial immunity on Speech or Debate grounds unless it has some reason to believe that the Justice Department would pursue a prosecution if the House made a contempt referral based on Trump’s failure to appear. Absent a reason to believe DOJ would prosecute, dismissal of the lawsuit on jurisdictional grounds leaves the committee without a means to contest Trump’s assertion of absolute immunity.
In contrast, the committee has less reason to seek judicial intervention with regard to the document subpoena. Trump’s objections to the document subpoena do not revolve around a straightforward and unresolved question of law such as whether a former president is entitled to absolute testimonial immunity. Instead, they involve a series of technical arguments based on House rules and practice (e.g., that the January 6 committee was improperly composed), fact-specific issues regarding the committee’s need for certain information and its ability to seek it from other sources, and executive privilege objections that are premature in the absence of specific documents to which they may apply. Particularly given Trump’s supposed willingness to negotiate with the committee and reach an accommodation with respect to the document requests, it is unclear why there should be judicial intervention at this time.
The January 6 committee might therefore waive Speech or Debate solely with regard to the issue of absolute testimonial immunity. It could also file a counterclaim seeking declaratory and injunctive relief on that issue alone. As Judge Nichols noted, Speech or Debate is inapplicable when it is the congressional parties seeking affirmative judicial relief.
With respect to the remainder of the complaint, including all of the objections to the document subpoena, the committee should ask for dismissal based on the Speech or Debate Clause. Alternatively, it could ask the court to direct the parties to engage in an expedited negotiation and accommodation process to resolve all document issues. It could even propose the appointment of a special master to assist in that process.
Of course, the committee will want to take into account the results of the midterm election because, as I wrote non-presciently a few weeks ago, “[o]nce the midterm election is over, the options for both the select committee and Trump will be clarified.” Needless to say, I did not take into account the possibility that the result of the midterm election would be a virtual tie in the House and that control of the chamber might not be known for days or weeks.
In these circumstances Trump might actually be better off with a House with a one or two seat Democratic majority because the Democrats might not want to spend the political capital to continue to pursue matters related to January 6. Conversely, if the Republicans have a one or two seat majority there could be pressure from Democrats and some Republicans to continue to seek Trump’s testimony in order to vindicate the House’s institutional prerogatives. Honestly I have no idea what is going to happen, but it will be interesting to watch.