Trump Subpoenaed by January 6 Committee

A dramatic if likely symbolic move.

Rosalind S. Helderman, Jacqueline Alemany and Tom Hamburger reporting for WaPo (“House Jan. 6 committee votes to subpoena Trump in finale surprise“):

The House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol issued a surprise subpoena seeking testimony from former president Donald Trump on Thursday, a challenge with little historical precedent that members said was a necessary final act before the panel concludes its work.

The unanimous vote came at the end of the committee’s ninth and likely final public hearing, a session intended as a closing argument to the panel’s 14-month investigation.

Combining a mix of new evidence gathered by the committee since July and testimony played at previous sessions, the hearing aimed to bolster a conclusion that members have hammered again and again: that the violence on Jan. 6 was the direct and predictable result of Trump’s choices in the weeks after he lost his bid for reelection.

But even after interviews with more than 1,000 witnesses and reviews of hundreds of thousands of documents, Rep. Liz Cheney (R-Wyo.), the panel’s vice chair, said the inquiry’s work is incomplete without hearing answers from “January 6th’s central player.”

“Every American is entitled to those answers,” she said.

It is doubtful that the committee will get them. Trump immediately assailed the panel’s work, and experts said the subpoena is unlikely to succeed in forcing him to testify without a lengthy court battle that would last into next year, when Republicans might take over the House.

But the vote — which committee Chairman Bennie G. Thompson (D-Miss.) cast as an “obligation” that will help ensure “nothing like January 6th ever happens again” — marked a dramatic punctuation to the two-and-a-half-hour session.

In a separate explainer, Perry Stein, Tom Hamburger and Spencer S. Hsu expand on “What does a Jan. 6 committee subpoena mean for Donald Trump?

Assuming he refuses:

Lawmakers could ask the Justice Department to charge Trump with contempt of Congress. Stephen Gillers, a professor of constitutional law at New York University, noted that federal prosecutors may refuse such a request. Alternatively, the department could add contempt to later charges “if it indicts him,” Gillers said.

Contempt of Congress is a rarely used criminal statute meant to ensure that people comply with congressional subpoenas. The case of Stephen K. Bannon, the right-wing podcaster and longtime Trump confidant, provides a road map of what could happen. In July, Bannon was convicted of contempt of Congress for his refusal to provide documents or testimony to the Jan. 6 committee. Bannon’s sentencing is scheduled for Oct. 21. Each of the two misdemeanor charges is punishable by at least 30 days, and up to one year, in jail.

No one has been incarcerated for contempt of Congress in more than half a century, since the red-baiting hearings of the Cold War era.

Stanley Brand, a former counsel to the House of Representatives who has represented some of the Jan. 6 witnesses, said it would be legally complicated to enforce a subpoena of a former president. “There is a very low probability we will ever see it happen,” Brand said. “How do you make a case for needing to do this when you are a legislative body, not a grand jury — though it has been acting like one?”

As to a court fight:

In theory, Trump could challenge the subpoena in court, Gillers said. That would trigger a repeat of a legal battle that unfolded again and again in federal courts during his presidency: Can Congress enforce its demands that top executive branch officials — and, in this case, the former president himself — testify before lawmakers?

A fight over a 2019 House Judiciary Committee subpoena of former White House counsel Donald McGahn — considered a star witness in former special counsel Robert S. Mueller III’s report on Russian interference in the 2016 election — stretched over two years as he staged legal battles so he didn’t have to testify. An appeals court ruled against the House, and the incoming Biden administration reached a compromise, which required McGahn to transcribe answers to questions behind closed doors.

The Supreme Court sided with Congress and the Biden administration on a similar issue in January, ruling that Trump could not prevent the House committee from obtaining hundreds of pages of his White House’s communications and records leading up to Jan. 6. (More than a dozen witness subpoenaed by the House Jan. 6 committee have pending lawsuits challenging those subpoenas.)

And, as already noted, the clock is running out:

Any legal proceedings that emerge from this subpoena could drag on for months. And that could be a win for Trump. If Republicans take control of the House in January, they will likely dissolve the Jan. 6 committee, rendering the subpoena meaningless, legal experts said.

“If the House flips, the committee will not be revived,” Gillers said. “If the House flips but the Senate does not, the Senate could create a committee to take over the House investigation and reissue the subpoena.”

To the extent that this is a political fight more than a legal one—that object is to discredit Trump and ensure he doesn’t get re-elected rather than to put him behind bars—the fact that essentially the entire Republican congressional delegation is expected to support him is telling. As compelling as the hearings have been, they’re just reinforcing the beliefs of Democrats that Trump was behind the Capitol riots and tried to steal the election. To the extent Republicans are being persuaded, it’s at the margins.

Still, given that hearing from Trump was always a likely endgame, it’s odd that they waited until this late in the cycle to issue the subpoena. It’s been obvious from the start that the hearings only have Democratic support and control of the House has been expected to flip since this Congress was sworn in.

FILED UNDER: US Politics, , , , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Argon says:

    Prediction: The 5th amendment will receive quite a workout that day.

    Compare and contrast to Hillary Clinton’s marathon questioning at the Benghazi hearings.

  2. Scott says:

    @Argon: Probably wouldn’t agree to testify under oath.

  3. CSK says:

    I’ve believed since Day One that Trump was guilty of inciting a riot–and saw did Kevin McCarthy and the other who are defending him now. How can you not believe that?

  4. CSK says:
  5. Michael Reynolds says:

    George Conway was on CNN doing instant analysis and he thinks this is just ticking a box, so the committee can rebut any idea that Trump wasn’t given a chance to have his say

  6. CSK says:

    According to The Guardian and the NYT, Trump said he’ll testify if he can do so live for viewing by the American public.

  7. Scott F. says:

    @Michael Reynolds:

    … so the committee can rebut any idea that Trump wasn’t given a chance to have his say.

    Whereas I keep wondering when the guy will STFU.

  8. Michael Reynolds says:

    He’s lying, of course. Trump? Under oath? Facing questioning by Liz Cheney? Nah.

  9. CSK says:

    “An unnamed source” told Fox News Digital that Trump “loves the idea” of testifying before the January 6th Committee, and that he would talk about election fraud, how corrupt the committee was, and how Nancy Pelosi didn’t call up the National Guard when he “strongly recommended” she do so.

  10. CSK says:

    @Michael Reynolds:
    Apparently Trump wouldn’t answer Cheney’s questions. He’d just rant about election fraud and how corrupt the J6 Committee is.

  11. JohnSF says:

    Also: supreme court rejects Trump appeal in Mar-a-Lago documents
    Not a very good day for Mr Trump, methinks.

  12. Sleeping Dog says:

    @Michael Reynolds:

    Oh, he’d love to have a national TV audience, but expect it to play out like the first presidential debate with Trump ranting and not answering questions.

    At this moment it is raining here in a manner that I’ve not observed since leaving StL, truly a tropical weather system. Ah global warming. The winds are knocking the leaves from the trees though.

  13. Kathy says:

    I don’t particularly care to see Benito testify in front of the committee. But I’d pay good money for him to testify in court.

  14. CSK says:

    @Sleeping Dog:
    Oh, I know. It’s already been reported that Trump plans to use the occasion to scream about election fraud and the utter corruption of the January 6 Committee.

    He may think he can use the opportunity to enrage his fan club and get them to mount another insurrection.

    “Hang Liz Cheney! Hang Adam Kinzinger!”

  15. just nutha says:

    While I will agree with Ms. Cheney that Americans deserved answers, I would suggest that subpoenaing FG is not the best route to obtaining answers, and that roughly 45% of Americans aren’t particularly interested in having answers should those answers prove troublesome.

    As to the subpoenas timing, I think it’s perfect–fan service for the Democrats with no real risk to anyone that it will ever be enforced. And no messy SCOTUS hearings on it either. Win-win-win.

  16. JKB says:

    They desperately needed to generate a headline for the Democrat media to hide the inflation and other bad economic news. By definition this is going to the courts. The House cannot just call the executive before them and this is about things that happened when Trump was the president.

    Not to mention, the House has already impeached and failed to convict Trump over January 6.

    Everything is dirty enough to take years assuming the courts aren’t actively supporting the Party. But it does generate chattering among the chattering class.

  17. just nutha says:

    @JKB: Just for the sake of accuracy–because I know its so important to you as you craft your arguments–it was The Senate that failed to convict FG, not The House. Try to keep up.


  18. JohnSF says:

    Could you let me know how the Biden administration is causing inflation in Britain and Europe.
    Because we’d really like it to go away.
    Thanks in advance for your assistance in this matter.

  19. Kathy says:


    The vaccines, duh!

  20. Gustopher says:

    I’m already tired of all the news hot takes about the process of subpoenaing a former President, and precedent set by Clinton and Ford… the man is a former President, a notPresident, he deserves the same deference as a dentist.

    If he wants to claim executive privilege because he was seeking the advice of experts in his private deliberations on whether or not to kill his vice president, then he can show up and make the claims. Otherwise, fuck him, throw him in the can.

  21. OzarkHillbilly says:

    @JKB: A point you seem to have missed:

    The House cannot just call the executive before them and this is about things that happened when Trump was the president.

    #1: Due to his losing the election, trump is no longer the executive.

    Secondly, a quibble: The House impeached, the Senate tried

  22. just nutha says:

    @Gustopher: Well, I would give a dentist more deference because he provides valuable service to society, but if you only want to give him the same deference Trump should have, that’s your right–mean spirited though you might be.

  23. Jay L Gischer says:

    Mr. Trump wants to testify and tell his story, which will be full of lies (under oath) and incriminating statements with regard to other investigations of him. I’m certain any lawyer he talks to advises against it. But he can’t be seen as ducking it. His self concept won’t allow it.

    If there’s one thing I think is within Liz Cheney’s skill set, it’s making Trump look like a fool if she gets him at the witness desk.

    I really have no idea how this will play out, though. Probably not much.