The Jan. 6 select committee’s subpoena of Donald Trump is not a play to secure his testimony. It’s a dare for the former president: Rebut our case against you, if you can.
“We have left no doubt, none, that Donald Trump led an effort to upend American democracy that directly resulted in the violence on January 6,” the panel's chair, Rep. Bennie Thompson (D-Miss.), said Thursday as members approved the subpoena. “He tried to take away the voice of the American people and replaced the will of the voters with his will to remain in power. He is the one person at the center of the story of what happened on January 6."
After a yearlong investigation that's amassed extraordinary evidence of Trump’s multi-front drive to subvert the 2020 election, the unanimous subpoena is a symbolic capstone that signals the panel's final phase. Beyond the historic weight of the committee's bid to make Trump the fourth former president to ever testify before Congress, its members and aides are under little illusion they will successfully obtain Trump’s testimony.
Any legal effort to compel Trump is likely to take years, far longer than the 2 1/2 months until the select committee sunsets at the end of the current Congress.
Some on the select panel held out hope — with tongues perhaps slightly in cheeks — that Trump might willingly appear for a deposition without necessitating the drag-out court fights that have defined his career. After all, they noted, he facilitated lengthy testimony by son Donald Jr. and daughter Ivanka without asserting any privileges that might have limited his children's testimony.
“I would consider it a great honor and privilege to testify if somebody accused me of trying to overthrow a presidential election and subvert the government in United States,” said Rep. Jamie Raskin (D-Md.). “So I have every reason to believe that every American citizen would comply with the subpoena.”
Others close to the committee joked privately that Trump might relish the ratings such public testimony would draw, even if it cut against his legal and political interests as he barrels toward another likely presidential run.
Minutes after the subpoena's approval, Trump needled the panel about it on Truth Social: “Why didn’t the Unselect Committee ask me to testify months ago?” he wrote. “Why did they wait until the very end, the final moments of their last meeting?”
He has, in many ways, answered his own question.
Trump has fought the Jan. 6 panel at every turn over his own exposure to its inquiry. He lost a bid at the Supreme Court to shield his White House records from the panel last year, a decision that armed the select committee with reams of internal documents that became central to the investigation.
And he exhorted several of his top allies and advisers to invoke any privileges or immunities that could prevent them from providing crucial testimony.
The select panel's fights against leading Trump allies like former chief of staff Mark Meadows have been tangled in litigation for months and are unlikely to be resolved before the committee disbands. In the meantime, the committee has opted against engaging in dozens of other court fights against lower-level witnesses, choosing to train its legal resources on fights with bigger payoff.
Litigating to obtain the testimony of a former president would be the most complicated and time-consuming fight of all — especially in the case of Trump, who's stymied congressional inquiries in the slow grind of the court system since 2017. Although Thompson described “precedent in American history” for Congress to subpoena former presidents, that sparse history is filled with examples of frustrated Congresses.
The most recent example is the 1953 subpoena of Harry Truman by the House Un-American Activities Committee. Truman defied that subpoena and explained why in a lengthy speech.
“It is just as important to the independence of the Executive that the actions of the President should not be subjected to questioning by the Congress after he has completed his term of office as that his actions should not be questioned while he is serving as President,” Truman contended at the time.
Notably, the Justice Department has cited those comments in internal opinions about efforts by Congress to compel former presidential aides to testify.
But the facts of the select committee's case to compel Trump are markedly different than the Cold War-era House's to summon Truman. A federal judge already has affirmed some of the panel's core contentions in ruling that Trump "likely" participated in a criminal conspiracy with his then-lawyer John Eastman to obstruct the congressional certification of his 2020 loss.
Then there's the unprecedented nature of the Jan. 6 attack, with Trump stoking an armed mob at the Capitol when he didn’t get his way and passing up opportunities to talk down the rioters. Select panel members have repeatedly underscored that they see an obligation to call Trump to answer for the extensive case that he singularly sought to disrupt the peaceful transfer of power.
And they've underlined the gravity of their claims time and time again to justify their own unprecedented steps — from subpoenaing members of Congress (who didn't comply) to seeking phone records from hundreds of potential witnesses to encouraging President Joe Biden to waive his predecessor's executive privilege (he did).
The panel’s subpoena dare to Trump is partly premised on its belief that he simply has no defense and wouldn’t subject himself to their detailed scrutiny. That belief rests on the fact that virtually every time Trump or his defenders have tried to explain the reasons for his conduct, those arguments withered under scrutiny.
For example, Trump and his allies have claimed, at times, that he genuinely believed some debunked election fraud claims — before the panel presented evidence that top campaign, White House and DOJ aides told him otherwise. Trump boosters have also claimed that he may have been unaware of the violence at the Capitol when he tweeted angrily at his vice president, only for the committee to present evidence that he was fixed on the TV showing the violence and in touch with aides who informed him of the grave threats.
Still, other Trump supporters have said that he had no knowledge of the weapons discovered within the Jan. 6 crowd, despite internal White House messages and testimony that suggest his top security aides had received reports of weapons-related arrests and threats.
“There is no defense that Donald Trump was duped, or irrational,” Rep. Liz Cheney (R-Wyo.) said at the outset of Thursday's hearing. “No president can defy the rule of law, and act this way in a constitutional republic. Period.”
