Litman: The Trump subpoena sets up a historic battle over executive privilege. Here’s why it won’t happen

Last week, Donald Trump’s attorneys formally accepted service of the committee’s Jan. 6 subpoena, demanding documents by Friday and testimony from the former president 10 days later, setting the stage for a historic legal battle between the executive branch and the legislature.

That’s how far the fight will go, I bet. Each side has good reasons not to try their luck with a lawsuit.

Of course, a fight would be out of the question if the former president chose to comply with the legal demands of Congress. There are reports that Trump, who is extremely confident in his ability to dominate any public setting, is actually eager to testify.

That’s nonsense.

Any protests from his attorneys that they must physically stop Trump from showing up and raising his right hand are theatrics. They know his inevitable forgery would charge him with perjury, charges on which the Justice Department would have no choice but to act.

The January 6 committee members are sane enough (and many are jaded enough from dealing with Trump’s head forgery during two impeachments) to expect their rightful command to be snubbed.

They are also sane enough to recognize that a jury trial to force the matter would only undermine the far-reaching mission, which the committee has done splendidly thus far.

Trump’s subpoena expires with the Congress that issued it. In the first week of January, when the next semester starts, it will be dead letter. And if, as expected, a new Republican majority takes over the House of Representatives, investigating the January 6 committee is far more likely than reviving its legal status.

So the committee might only have 10 weeks or so until it turns into a pumpkin. With the sluggish pace of federal lawsuits, that’s barely enough time to get out of the gate.

There is another complication. Any attempt to get Trump to testify would require a vote by the entire Congress to cast him in contempt. Democrats would still have their slim majority in a lame duck session, but it’s far from clear that they would all agree to side with the future Republican powers on the wrong side.

Even with a contempt order imminent, the next step — referring Trump to the Justice Department for criminal charges — is another dubious proposition. It worked with Stephen K. Bannon, who resisted a 2021 subpoena issued by the committee. In October, Bannon was sentenced to four months in prison and a $6,500 fine.

But it’s far from certain that the Justice Department would agree to indict a criminal against Trump. That’s because it’s an unsettled law as to whether a past president can be contempt for refusing a subpoena from Congress.

In fact, the Department’s Office of Legal Counsel hinted that it wasn’t legal in a troublesome 2007 memo, citing the historic example of President Truman. Truman, then out of office, refused a subpoena to testify before the House Un-American Activities Committee in 1953, and Congress did not investigate the matter. He later voluntarily testified before another committee, as did sitting presidents. Some have cooperated to varying degrees with subpoenas, but that doesn’t prove they can be coerced.

Given the short timeframe and the possibility of a high-profile loss if the Justice Department refuses to indict Trump, it’s questionable whether the Jan. 6 committee would seek a criminal referral at all.

But what about Trump? Several commentators have suggested that he could bring the fight before the committee by filing his own lawsuit to have the subpoena overturned.

Again, I think the smart money is against a legal square-off.

First, notwithstanding the DOJ’s Truman memo, the matter is unresolved and Trump would face strong arguments that the law requires his testimony. During the Watergate investigation, when President Nixon tried to withhold the White House records from investigators, the Supreme Court ruled that any executive privilege must give way to proven evidence by law enforcement.

Even if Trump and his attorneys think they can defy that precedent in the Supreme Court, they would likely – spectacularly – lose in lower courts. Why wear that gauntlet and suffer the bad PR when there is a readily available, Trumpian alternative – delay while maintaining the pretense of eventual conformity.

Trump could combine broadsides against the “witch-hunt” subpoena with suggestions that he could cooperate under certain conditions (guaranteedly unacceptable to the committee), or offer a dribble or two of documents, or simply demand more time to comply.

This tactic would initiate a period of alleged negotiations between Trump and the committee — a fairly common condition in the practice of subpoenas in Congress. A few rounds of false diplomacy would get him into December and bring him before the committee to force the issue or leave it alone.

And see above.

In the end, is the much-touted Trump subpoena just an empty gesture? Not at all.

As the members of the January 6 Committee will have known all along, subpoenaing Trump will not add much to the evidence base. But his fierce disregard for their demands could be an exclamation point for a damning final report from the committee on his conduct.

Far from being empty, the gesture of calling Trump to testify only underscores his refusal to be held accountable for his attack on civil society and his contempt for the rule of law and the American people he was elected to serve.

@HarryLitman Litman: The Trump subpoena sets up a historic battle over executive privilege. Here’s why it won’t happen

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