Near the end of Thursday’s US House hearing on the events of January 6, 2021, the committee voted unanimously to subpoena former President Donald Trump. This may seem like a major turning point in research, and it’s not without significance. Nevertheless, the vote does not mean the former president will testify before the committee. In fact, that possibility is far away.
When Trump or those in his inner circle have received subpoenas, they have challenged the subpoenas in court at length. In a letter to the commission Friday morning, Trump did not say whether he… scheduled to meet in this case. While these previous challenges have failed, they have met the goal of postponing the various proceedings for many months.
When it comes to the possibility of filing charges if Trump doesn’t stick, the Justice Department may very well decline.
And the clock for the committee is ticking. If Republicans gain control of the House of Representatives in the midterm elections, which seems likely, the committee will likely cease to exist after the first of the year. The Jan. 6 committee is a select committee, not a standing committee or subcommittee of the House. It would have to be renewed by the new Congress, an unexpected possibility if Republicans gain control of the chamber. And even if the Democrats retain control of the House, more obstacles remain.
In his private life before and after the presidency, Trump has made it clear that a common modus operandi is to fight the legal process when it is directed against him. That has most recently become apparent in his response to the federal government’s attempt to obtain classified documents.
On May 11, agents working with the Department of Justice served a subpoena to the data custodian at Mar-a-Lago, requesting that the return of classified documents. The issuance of the subpoena sparked a three-month interval, including discussion between the Justice Department and Trump representatives; but it did not lead to the production of the documents being summoned. After three months, the FBI issued a search warrant on August 8.
Mar-a-Lago’s subpoena was an example of a Trump defense strategy that amounts to a defensive war war of attrition against investigators, civilian plaintiffs, and congressional investigators. In the New York Attorney General’s investigation into the business and tax practices of Trump’s New York companies, which led to a civil suit against Trump, the former president thwarted the AG’s attempts to get documents for years until a judge of the court issued a contempt. The judge eventually lifted the contempt warrant after Trump’s compliance.
Trump’s advisers provide further evidence of how long the process of collaborating with authorities can be. In April 2019, Congressional investigators working on the former president’s first impeachment subpoenaed the testimony of Trump’s presidential adviser Don McGahn. After a legal battle, McGahn finally testified more than two years after congressional investigators first searched for him.
When it comes to the Jan. 6 commission specifically, Trump has pushed former aides from his inner circle to follow his approach. He ordered Chief of Staff Mark Meadows, Deputy Chief of Staff Dan Scav, Jr. and Kashyap Patel, a Pentagon official, for not cooperating with the Jan. 6 commission.
After initially cooperating, Meadows declined to assist the committee further. It was only in September of this year that Meadows resumes collaboration. Scavino, meanwhile, received a subpoena in October 2021 and negotiated with the committee to produce documents before refusing to cooperate. Patel met the committee faster than others. He appeared in December 2021, a few months after Trump ordered him not to cooperate.
There are some counter-pressures that researchers can exert. The Justice Department can prosecute criminal contempt cases when the subpoenaed do not testify, as it did with former Trump adviser Stephen Bannon and former trade adviser Peter Navarro after they rejected requests and subpoenas from the Jan. 6 commission. But the Department of Justice does not always take this step. In Scavino’s case, for example, the Justice Department refused to charge him with contempt of Congress despite a Congressional referral.
Even if the Ministry of Justice intervenes, this is not always a guarantee for the result. The department achieved a grand jury indictment for contempt of Congress and a jury convicted Bannon on both counts of the indictment in July 2022. Bannon awaits sentencing and has yet to testify. Navarro was subpoenaed in February 2022. His trial date is November 17.
This timeline will likely be similar, if not longer, for Trump. After the subpoena is served, Trump and his legal team can comply with it. He is more likely to challenge the subpoena, negotiate with the commission, or ignore it. Each of those alternatives will begin a lengthy process that could take months or years.
The current Congress will be in effect for about two and a half months. If Republicans form a majority of the House of Representatives in the next session, there is virtually no chance that the Republican leadership will reauthorize the select committee. So it will cease to exist. The House will not attempt to enforce Trump’s subpoena, and it will not make a criminal referral to the Justice Department or insist that the Department act on a referral.
Democrats who retain control of the House will allow proceedings against Trump to continue, but it presents its own difficulties in enforcing the subpoena. A decision to continue the hearings solely to put the former president in a position of potentially invoking the Fifth Amendment is more of a political maneuver than a fact-finding mission.
When it comes to the possibility of filing charges if Trump doesn’t stick, the Justice Department may very well decline. It has already shown that it does not automatically bring charges against those who ignore congressional subpoenas. And there will likely be little appetite to specifically charge Trump with contempt for Congress, because that would set a precedent for indicting former presidents for low-level misconduct.
The January 6 commission was certainly aware of the difficulties and the slim chance that it would succeed in obtaining documents or testimony from the former president. Nevertheless, the subpoena leads to a strong conclusion that Trump was central to the January 6 uprising. The subpoena was as much a statement to future historians and the public as to the committee’s unanimous belief in its guilt, as it was an attempt to obtain more evidence.