January 6 Committee Subpoenas Trump

Steven D. Schwinn, University of Illinois Chicago School of Law

The January 6 Committee last week issued a subpoena for documents and testimony to former President Donald Trump. The move was expected (after an earlier Committee vote in support of a subpoena), although the Committee itself recognized that it was "significant and historic." (Compelled testimony by a former president could raise separation-of-powers issues, because the threat of future compelled testimony could chill a current president's exercise of authority under Article II. The Committee was careful to sidestep this concern, however, by requesting documents and testimony related to former President Trump's behavior outside of Article II (that is, trying to reverse a valid election, which, of course, is the exact opposite of executing Article II authority).) But at the same time, this isn't the first congressional subpoena directed at a former president, or the first time a former president testified before Congress. (For more on this, see the Senate's page on testimony by former presidents before congressional committees and this Congressional Research Service report on Congress's Contempt Power and the Enforcement of Congressional Subpoenas.)

In support of the subpoena, the Committee wrote:

Because of your central role in [various efforts to overturn the 2020 presidential election], the Select Committee unanimously directed the issuance of a subpoena seeking your testimony and relevant documents in your possession on these and related topics. This subpoena calls for testimony regarding your dealings with multiple individuals who have now themselves invoked their Fifth Amendment privilege against self-incrimination regarding their communications with you, including Roger Stone, Lt. Gen. Michael Flynn, U.S. Army (Retired), John Eastman, Jeffrey Clark, and Kelli Ward. These Fifth Amendment assertions--made by persons with whom you interacted--related directly to you and your conduct. They provide specific examples where your truthful testimony under oath will be important.

In addition, as is likely obvious from the topics identified in the bullets above, we are considering multiple legislative recommendations intended to provide further assistance that no future President could succeed at anything even remotely similar to the unlawful steps you took to overturn the election. Your testimony and documentary evidence would further inform the Select Committee's ongoing work.

This last paragraph is designed to short-circuit former President Trump's inevitable argument that the Committee's subpoena lacks a legitimate legislative purpose, and is therefore invalid. Former President Trump and his supporters have lodged this claim against most every congressional inquiry into significant actions of former President Trump and his administration. The claims are spurious and designed only to delay compliance, force litigation on the question, and run the clock.

Still, look for former President Trump to make this claim, among others, in response to the Committee's subpoena. If Republicans win the House in November (and shut down the Committee when they take their seats next year), this kind of foot-dragging will pay off for him.