Published by The Lawfare Institute
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On Oct. 21, the Select Committee to Investigate the January 6th Attack on the United States Capitol made good on its promise to subpoena former President Donald Trump. Committee Chair Bennie Thompson (D-Miss.) and Vice Chair Liz Cheney (R-Wyo.) explained in a cover letter to Trump that while “a subpoena to a former President is a significant and historic action,” it is necessary in this case because “we have assembled overwhelming evidence, including from dozens of your former appointees and staff, that you personally orchestrated and oversaw a multi-part effort to overturn the 2020 presidential election and to obstruct the peaceful transition of power.”
The accompanying subpoena directs the production of “the things identified on the attached schedule” by Nov. 4, 2022, at 10:00 a.m. The schedule identifies 19 categories of documents, materials, and electronic information that Trump must produce, most of which focus on the period between Nov. 3, 2020, and Jan. 6, 2021. The subpoena also directs Trump to “testify at a deposition” on Nov. 14, 2022, at 10:00 a.m. and specifies the place of testimony as the “U.S. Capitol Building ... or by videoconference.”
All of this may sound straightforward, but for a number of reasons, some of which I have discussed recently, it is anything but. Even serving the subpoena may be tricky. It appears the select committee was unable to get one of Trump’s attorneys to accept service on his behalf because the subpoena provides for service by “any authorized staff member or the United States Marshals Service.” I doubt a staff member is going to try to penetrate Mar-a-Lago to personally serve the former president, so service will probably depend on a negotiation between the marshals and the Secret Service.
Once the subpoena is served, Trump and his legal team will have to decide how to respond. Trump will most likely assert that as a former president he is absolutely immune from compelled congressional testimony. While I believe this position is wrong (for reasons explained here), the Department of Justice has long taken the view that former presidents cannot be compelled to testify before Congress about their official activities. It recently reiterated this view in a filing regarding the efforts of Trump’s former chief of staff, Mark Meadows, to avoid testifying before the Jan. 6 committee, and it seems unlikely the department will change this view unless and until the courts force it to do so. So long as the Justice Department will not prosecute for criminal contempt, there is little legal risk in claiming absolute immunity.
To be sure, the Justice Department’s view is that absolute testimonial immunity is limited to official activities, and there is a strong argument that Trump’s “effort to overturn the 2020 presidential election and to obstruct the peaceful transition of power” falls outside the scope of “official activities,” at least in significant part. However, it is unlikely the Justice Department would prosecute Trump based on a disagreement over the scope of official activities. After all, it chose not to prosecute either Meadows or Dan Scavino (another top Trump aide) despite disagreeing with their claims of immunity in response to testimonial subpoenas from the Jan. 6 committee.
Another reason Justice may decline to prosecute Trump for refusing to testify (which also may have played a role in its decisions on Meadows and Scavino) is that Trump was subpoenaed to testify at a deposition, rather than in a congressional hearing. The Justice Department tends to look askance at congressional depositions of high-ranking executive officials and has “questioned whether committees may properly authorize staff to depose senior executive officials.” Given that Thompson and Cheney explained in their cover letter that Trump’s deposition “will be led by the professional staff of the Select Committee—including multiple former federal prosecutors—as well as Members,” the Justice Department is particularly unlikely to prosecute. In short, Trump faces a relatively low risk of criminal prosecution if he refuses to testify based on absolute immunity.
However, that strategy will not work with regard to the document subpoena, because Justice has never viewed immunity as applying to the production of documents. If Trump insists on ignoring the document subpoena deadline or filing blanket objections that sound more like political grievance than legal doctrine (such as complaining that the select committee was invalidly composed), he runs a real risk of being cited for criminal contempt by the House and subsequent prosecution by the Justice Department.
Even if Trump’s lawyers can convince their combative client to adopt a more conciliatory approach, they still have a problem. If they produce responsive documents and a detailed privilege log (as required by the House’s standard definitions and instructions for document subpoenas), they will be acknowledging that Trump possesses documents that might qualify as presidential or agency records. And such records should have been returned previously to the National Archives or produced in response to a federal grand jury subpoena issued to Trump’s presidential office on May 11, 2022. If any of these documents are classified, of course, that is an even bigger problem.
For the same reasons that Trump’s testimony about Jan. 6 might be outside the scope of official activities, his lawyers could argue that many of the documents sought by the Jan. 6 committee are personal or political rather than presidential records. Unfortunately, this argument would seem to fly in the face of the Presidential Records Act (44 U.S.C. § 2201(2)(A)), which defines “presidential records” to include "any documentary materials relating to the political activities of the President or members of the President’s staff, but only if such activities relate to or have a direct effect upon the carrying out of constitutional, statutory, or other official or ceremonial duties of the President."
Arguing that responsive records are personal or political has its own set of downsides for Trump. It makes it harder if not impossible to withhold those records on grounds of executive or other governmental privilege. It also tacitly acknowledges that Trump’s actions with regard to the 2020 election and Jan. 6 were based on his own personal and political interests rather than the duties and obligations of his office. Thus, as Trump’s legal team is trying to avoid a particular characterization of documents found at Mar-a-Lago in the Florida special master proceeding, they may wish to avoid taking any firm position about documents responsive to the committee subpoena.
Of course, how this plays out depends in part on facts we do not know, including what type of responsive documents or electronic information Trump actually has in his possession, custody, or control. We also don’t know what type of search he will allow his attorneys to perform and whether Trump or one of his lawyers will be willing to sign a written certification (as required by the House’s standard instructions) that “(1) a diligent search has been completed of all documents in your possession, custody, or control that reasonably could contain responsive documents; and (2) all documents located during the search that are responsive have been produced to the Committee.”
Despite these unknowns, it seems like a good bet that Trump’s lawyers will try to avoid giving a substantive response to the document subpoena for as long as possible. One possibility is that they will try to push off the initial response date (currently scheduled, probably not coincidentally, four days before the midterm elections) by arguing they need more time to conduct a search. Another would be that they will assert (plausibly, for the reasons already discussed) that the act of producing the requested documents would tend to incriminate Trump and therefore violate his rights under the Fifth Amendment. Trump might be reluctant to take the Fifth, particularly right before the midterm election, but if he did, the committee would either have to forgo the documents or vote to give Trump “act of production” immunity. This would protect Trump against having the fact that he produced the documents used against him in a criminal case, though it would not prevent prosecution based on any incriminating information contained in the documents.
Once the midterm election is over, the options for both the select committee and Trump will be clarified. If the Democrats should hold the House, the committee would probably file a civil enforcement lawsuit in which the validity of Trump’s claim of testimonial immunity, as well as any privilege disputes regarding the documents, could be adjudicated.
In the (apparently more likely) event that the Republicans take control of the House, there will simply not be enough time for the committee to complete a civil enforcement action before the end of this Congress. The only viable option for the committee in that case would be a criminal contempt certification by the House to the Justice Department. The objective for Trump’s team will be to dissuade the House from making such a certification by convincing enough House members that it will be futile because Justice will not prosecute, making a certification will be too politically controversial, or both.
If the House does certify a contempt before the end of the 117th Congress, it will be up to the Justice Department to decide whether to move forward with indictment and prosecution. Some commentators, including Jonathan Turley, have suggested that even if the 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 (“refusal of witness to testify or produce papers”), 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. The mere fact that the House changes its mind about a prior contempt certification should certainly have no legal effect.
While some observers view this “significant and historic” subpoena as mostly symbolic in nature, it also has the potential to add to the former president’s legal woes. Much will depend on how the parties navigate the thorny legal issues discussed above in the weeks ahead.