The House January 6 select committee has formally transmitted a subpoena to Donald Trump, compelling the former president to provide an accounting under oath about his potential foreknowledge of the Capitol attack and his broader efforts to overturn the 2020 election.
The subpoena made sweeping requests for documents and testimony, dramatically raising the stakes in the highly charged congressional investigation and setting the stage for a constitutionally consequential legal battle that could ultimately go before the supreme court.
“Because of your central role in each element”, the panel’s chairman, Bennie Thompson, and vice-chair, Liz Cheney, wrote, “the select committee unanimously directed the issuance of a subpoena seeking your testimony and relevant documents in your possession on these and related topics.”
Most notably, the committee demanded that Trump turn over records of all January 6-related calls and texts sent or received, any communications with members of Congress, as well as communications with the far-right Proud Boys and Oath Keepers, extremist groups that stormed the Capitol.
The expansive subpoena ordered Trump to produce documents by 4 November and testify on 14 November about interactions with key advisers who have asserted their fifth amendment right against self-incrimination, including the political operatives Roger Stone and Michael Flynn.
“You were at the center of the first and only effort by any US president to overturn an election and obstruct the peaceful transfer of power,” the panel’s leaders wrote in making the case to subpoena Trump. “The evidence demonstrates that you knew this activity was illegal.”
The subpoena also sought materials that appeared destined to be scrutinized as part of an obstruction investigation conducted by the select committee.
One of the document requests, for instance, was for records about Trump’s efforts to contact witnesses and their lawyers.
The documents request was specifically drafted to cover materials Trump would be able to turn over. The subpoena added: “The attached schedule is narrowly focused on records in your custody and control that you are uniquely positioned to provide to the select committee.”
Thompson transmitted the subpoena after investigators spent days drafting the order and attorneys for the select committee contacted multiple lawyers working for Trump to ascertain who was authorized to accept its service.
“We do not take this action lightly,” the subpoena said, noting the historical significance of the moment. But, the subpoena added, this was not the first time that a former president had been subpoenaed – and multiple former presidents have testified to Congress.
Whether Trump will testify remains unclear. Though he has retained the Dhillon Law Group to handle matters relating to the subpoena, the final decision about his cooperation will be based to a large degree on his own instincts, sources close to the former president suggested.
The driving factor pushing Trump to want to testify has centered around a reflexive belief that he can convince investigators that their own inquiry is a witch-hunt and that he should be exonerated over January 6, the sources said.
Trump has previously expressed an eagerness to appear before the select committee and “get his pound of flesh” as long as he can appear live, the sources said – a thought he reiterated to close aides last week after the panel voted to issue the subpoena.
But Trump also appears to have become more attuned to the pitfalls of testifying in current investigations, with lawyers warning him about mounting legal issues in criminal inquiries brought by the US justice department and a civil lawsuit brought by the New York attorney general.
The former president invoked his fifth-amendment right against self-incrimination more than 400 times in a deposition with the office of the New York attorney general before the office filed a giant fraud lawsuit against him, three of his children and senior Trump Organization executives.
Trump also ultimately took the advice of his lawyers during the special counsel investigation into ties between his 2016 campaign and Russia, submitting only written responses to investigators despite initially telling advisers he wanted to testify to clear his name.
That recent caution has come with the realization that Trump could open himself up to legal peril should he testify under oath, given his penchant for misrepresenting or outright lying about events of any nature – which is a crime before Congress.
Any falsehoods from Trump would almost certainly be caught by the select committee. The subpoena letter said the panel intended to have the questioning conducted by attorneys, many of whom are top former justice department lawyers or federal and national security prosecutors.
The former president’s testimony and transcript would almost certainly be reviewed by the justice department as part of its criminal probe into various efforts to overturn the 2020 election, which the select committee has alleged was centrally orchestrated by Trump.
But the move to subpoena Trump comes with inherent risks for the panel itself. If it were to allow Trump to testify live, it would be faced with a witness who might self-incriminate, but could also use proceedings to repeat lies about the 2020 election that led to the Capitol attack.
The select committee might also face a difficult choice of how to proceed should Trump simply ignore the subpoena, claiming the justice department’s internal legal opinions indicate that presidents and former presidents have absolute immunity from testifying to Congress.
Investigators would then have to decide whether to seek judicial enforcement of the subpoena, though such an effort would likely take months – time that the select committee does not have, given it will almost certainly be disbanded at the end of the current Congress in January 2023.
Should the panel instead simply move to hold Trump in contempt of Congress for defying the subpoena – his former strategist Steve Bannon was sentenced Friday to jail for his recalcitrance – it remains unclear whether the justice department would prosecute such a referral.
