Trump could exploit legal 'gray area' to resist Jan. 6 panel's subpoena

WASHINGTON — If former President Donald Trump decides to fight the subpoena issued to him Friday by the House committee investigating his attempts to overturn the 2020 election, his lawyers are likely to muster a battery of constitutional and procedural arguments for why a court should allow him not to testify.

In the most basic sense, any legal arguments seeking to get Trump off the hook would merely need to be weighty enough to produce 2½ months of litigation. If Republicans pick up enough seats in the midterm elections to take over the House in January, as polls suggest is likely, they are virtually certain to shut down the Jan. 6 committee, a move that would invalidate the subpoena.

The issues raised by the extraordinary subpoena, which the panel announced at a hearing last week, are too complex to be definitively resolved before a potential change of power in the House, said Mark Rozell, a George Mason University professor and author of "Executive Privilege: Presidential Power, Secrecy and Accountability."

"We are in a constitutional gray area here where there is no clear guidance as to exactly what should happen," Rozell said. "That gives the former president some leeway to put forward various creative legal arguments and ultimately delay the process until it doesn't matter anymore."

Several former presidents have voluntarily testified before Congress, including Theodore Roosevelt, William Howard Taft, Herbert Hoover, Harry Truman and Gerald Ford. But there is no Supreme Court precedent that says whether Congress has the power to compel former presidents to testify against their will about their actions in office.

There are two historical precedents, but neither generated court rulings. In 1846, the House subpoenaed two former presidents, John Quincy Adams and John Tyler, for an investigation into allegations of misspending by a secretary of state. According to a Congressional Research Service report, Tyler testified and Adams submitted a deposition.

And in 1953, the House Committee on Un-American Activities subpoenaed Truman. But while he later voluntarily testified before Congress on other topics, Truman refused to honor the committee's subpoena, claiming that as a former chief executive, he was immune from compelled testimony by the legislative branch. The House let the matter drop.

One open question, then, is whether Truman was right. Should Trump's legal team choose to argue that he was, one Supreme Court precedent could prove relevant: In 1982, the court ruled that former presidents are immune from being sued for damages over official decisions they made while in office.

In that case, Nixon v. Fitzgerald, the majority reasoned that presidents must be able to perform their constitutional duties without being inhibited by the fear that a decision could risk making them liable to pay civil damages after they leave office. The question in Trump's case would be whether a president could be similarly hindered by a fear of being forced to testify in front of Congress.

Trump's legal team could also invoke executive privilege in an attempt to ward off the subpoena. In another case involving Richard Nixon, the Court of Appeals for the D.C. Circuit ruled in 1974 that a Senate committee investigating the Watergate scandal could not force Nixon, then the sitting president, to turn over tapes of his Oval Office conversations.

The appeals court ruled that the Senate's need for the tapes was not enough to overcome the presumption of confidentiality guarding the presidential decision-making process. That general confidentiality is important, courts decided, so that presidents can receive candid advice from their aides about how best to carry out their constitutional functions.

(More famously, about three months later, the Supreme Court upheld a subpoena by the Watergate prosecutor for the tapes, citing the greater need for them in a criminal proceeding. Soon after, Nixon resigned to avoid being impeached.)

Unlike Nixon in 1974, however, Trump is now a former — not a sitting — president, and his claims to executive privilege would be weaker. The current officeholder, President Joe Biden, who has greater authority to invoke or withhold executive privilege, might not support him.

Notably, Biden declined to support an earlier attempt by Trump to invoke executive privilege to keep the Jan. 6 committee from subpoenaing the National Archives for White House records. The Supreme Court, ruling against Trump, declined to block the subpoena, although it did so in a way that left unresolved the scope of an ex-president's powers under executive privilege.

Still, courts might view forcing a former president to show up at the Capitol and testify under oath differently than obtaining documents. Biden might also be more reluctant to establish a precedent that could help a Republican-controlled Congress subpoena him for testimony.

Trump could also try to mount a procedural argument that the subpoena is invalid.

That tactic has been used by nearly 30 people — among them, former aides to Trump — who have filed lawsuits seeking to quash subpoenas from the Jan. 6 committee. Many of these witnesses have argued the panel was improperly constituted and the subpoenas are insufficiently connected to writing laws.

The first argument goes like this: The House resolution authorizing the committee envisioned that Speaker Nancy Pelosi would appoint 13 members, including five in consultation with Republican leadership. But the panel has only nine members, and neither of its two Republicans — Liz Cheney of Wyoming and Adam Kinzinger of Illinois — was endorsed by the minority leader, Rep. Kevin McCarthy of California, who boycotted the process after Pelosi rejected several of his choices.

As for the second, lawyers for the witnesses have argued that the subpoenas were not sent with the goal of assisting Congress in its role in drafting laws, but rather as a politically motivated fishing expedition for embarrassing information about Trump.

Most of the lawsuits challenging the subpoenas on these — and other — grounds are still working their way through the courts. But in May, a federal judge in Washington dismissed both of the arguments claiming the subpoenas were invalid in a case the Republican National Committee brought against the panel.

That ruling, however, was vacated several months later by the Court of Appeals for the D.C. Circuit after the committee dropped its subpoena for the Republican National Committee.

A Federal District Court judge also rejected claims that the committee's subpoenas were invalid in the criminal prosecution of Steve Bannon, a former adviser to Trump, who was sentenced to four months in prison Friday for defying a subpoena from the House panel.

In a ruling in the case, Judge Carl Nichols, a Trump appointee, noted that the full House had voted to hold Bannon and others who defied subpoenas in contempt, indicating that the body viewed the committee's subpoena as valid. Nichols said courts must defer to the House's interpretation of its own rules, so he "cannot conclude as a matter of law that the committee was invalidly constituted."

Still, rulings by district court judges are not definitive precedents, leaving much to litigate.

It also remains unclear which route to court a fight over the Trump subpoena could take. Trump might file his own suit asking a judge to quash it. Or he could wait for the House to try to enforce its subpoena.

One way for that to happen would be for the full chamber to vote on whether to hold him in contempt and to refer the matter to the Justice Department for potential criminal prosecution, as it did for Bannon.

It would then be up to Attorney General Merrick Garland to decide whether to bring a criminal charge.

The Jan. 6 committee could also file its own lawsuit against Trump seeking a judicial order that he comply. In August 2019, for example, the House Judiciary Committee sued Trump's former White House counsel, Donald McGahn, who at Trump's direction defied its subpoena seeking his testimony about Trump's obstruction of the Russia investigation.

The lawsuit set off a series of convoluted legal fights over constitutional issues and was still pending even when Biden became president in January 2021. That underscores the lack of time for extended litigation in Trump's case.

Aides to Trump have said that he has weighed whether to testify, but only under the condition that it be live and on television. That would deprive the committee of controlling what gets seen or from releasing only selected excerpts.

Rozell said that was not surprising.

"If Trump is going to go out there and make himself vulnerable, he's going to do it in a public way," he said. "It's going to be a Trump show, and he'll be playing to his own crowd. At that point, legal argument and nuances would be out the window."