Presidents and former presidents have testified voluntarily before Congress, but Trump’s legal battle could set a new legal framework for relations between lawmakers and the executive branch.
- The panel seeks information about Trump communications before and during the Jan. 6 Capitol attack.
- Trump has argued the inquiry is partisan and illegitimate.
- The committee plans to complete its final report by the end of the year, with or without Trump.
WASHINGTON – Former President Donald Trump Friday filed a federal lawsuit challenging a subpoena from the House committee investigating the Capitol attack on Jan. 6, 2021, according to media reports, officially sparking a legal battle with the panel that has accused him of being a central figure in the riot.
The panel’s subpoena sought Trump’s documents by Friday and testimony by Monday.
The requests included records of phone calls, texts or Signal messaging app communications placed or received by Trump between the 2020 election and the riot. Among those targeted in the communications are members of Congress and advisers, including political operative Roger Stone and personal lawyer Rudy Giuliani.
The committee conducted more than 1,000 interviews and depositions, and collected hundreds of thousands of pages of documents, to chronicle what led to the Jan. 6, 2021, attack and what happened that day.
But the chairman, Rep. Bennie Thompson, D-Miss., said at the final hearing Oct. 13 the panel wants to hear from Trump to hold him accountable for trying to overturn the 2020 election in a way that led directly to violence.
“He tried to take away the voice of the American people in choosing their president and replace the will of the voters with his will to remain in power,” Thompson said. “He is the one person at the center of the story of what happened on Jan. 6th, so we want to hear from him.”
The vice chair, Rep. Liz Cheney, R-Wyo., said the committee has sufficient evidence to recommend the Justice Department bring criminal charges against “multiple individuals.” More than 30 witnesses invoked their Fifth Amendment right against self-incrimination to avoid testifying, including several in response to questions about their dealings with Trump, she said.
The taciturn witnesses included political operative Roger Stone and Michael Flynn, Trump’s onetime national security adviser, who each met with members of the Oath Keepers before the attack. John Eastman, one of Trump’s personal lawyers, developed the scheme to replace legitimate electors for President Joe Biden with Trump supporters in contested states. Another potential witness was Jeffrey Clark, a former Justice Department official Trump wanted to name acting attorney general.
“We are obligated to seek answers directly from the man who set this all in motion,” Cheney said.
The subpoena sought the following documents and communications:
- Those sent or received through Signal or other means since Sept. 1, 2020, with members of the far-right militia groups Oath Keepers or Proud Boys. The request comes as five members of the Oath Keepers are on trial, charged with seditious conspiracy.
- Communications dealing with Vice President Mike Pence, whom Trump urged to reject electors from key states Biden won. Pence refused, but lawmakers and Cabinet members discussed the possibility of removing Trump from office so Pence could succeed him.
- Those concerning the Justice Department, where then-Attorney General Bill Barr and acting Attorney General Jeffrey Rosen each told Trump repeatedly that he had lost the election. Barr testified he refused to seize ballot boxes from contested states, as Trump demanded.
- Those encouraging people to travel to Washington.
Trump repeatedly accused the committee of conducting a partisan inquiry. Without mentioning the subpoena the day the committee voted, Trump said in posts on Truth Social that the committee was “a total ‘BUST’ that only served to divide the country.” He also cited unsubstantiated claims of voter fraud as the reason for what took place Jan. 6.
Trump challenge could be one for the history books
With the lawsuit, Trump embarked on a legal challenge that could establish a new framework for relations between the legislative and executive branches of government. Federal courts will be asked to determine when Congress can force a former president to testify.
The lawsuit came as no surprise because Trump has sharply criticized the committee previously and he previously fought a committee subpoena to the National Archives and Records Administration for his administration’s documents.
He took that case all the way to the Supreme Court. But the high court refused to hear Trump’s challenge over executive privilege – a doctrine that aims to ensure the confidentiality of communications with a president so he can receive candid advice from aides – and the committee got the documents.
But the Jan. 6 case could be short-lived and remain unresolved. The House panel anticipates completing its work and submitting its final report before the end of the year, whether Trump testifies or not.
If Democrats keep control of the House after Tuesday’s election, they could potentially continue litigating the case. The House Judiciary Committee fought in court for about two years for the testimony of Trump’s White House counsel, Don McGahn, before he negotiated a settlement to give a transcribed interview.
But Republicans opposed the Jan. 6 committee as a partisan investigation and would likely drop the subpoena and the case if they win control of the House.
Presidents have testified in the past before Congress
Trump’s case is unique because he refuses to cooperate. Previous presidents have voluntarily appeared before Congress both while in office and after leaving the White House.
- President Abraham Lincoln appeared privately before the House Judiciary Committee in 1862 to discuss the leak of a presidential message.
- President Woodrow Wilson testified at the White House before members of the Senate Foreign Relations Committee in 1919 about the peace treaty ending World War I and establishment of the League of Nations.
- President Gerald Ford testified at the House Judiciary Committee in 1974 about his pardon of former President Richard Nixon.
- Former presidents have also testified after leaving office, including Ford, Theodore Roosevelt, William Howard Taft and Harry Truman.
In 1846, the House subpoenaed two former presidents – John Quincy Adams and John Tyler – during an investigation into whether Secretary of State Daniel Webster improperly disbursed money from a secret contingency fund for clandestine foreign operations, according to a Congressional Research Service report. Tyler testified and Adams filed a deposition.
A key episode defining executive privilege involved Nixon’s Oval Office tapes of conversations with counsel John Dean during the Watergate investigation. Nixon invoked executive privilege and the U.S. Court of Appeals for the D.C. Circuit ruled in 1974 the Senate committee couldn’t compel Nixon as a sitting president to turn over the tapes.
But several months later the Supreme Court upheld a special prosecutor’s subpoena for the tapes as part of his criminal investigation. Nixon then resigned.