Hours after former White House adviser Steve Bannon was sentenced to four months in jail for defying a subpoena from the January 6th committee, the partisan panel subpoenaed former President Donald J. Trump in what the New York Times described as the 'most aggressive step taken so far.'
The Friday subpoena comes a week after the committee voted unanimously to do so, and demands that Trump turn over documents by Nov. 4, as well as appear for a deposition on or around Nov. 14 in an interview that could last several days.
"The deposition will be under oath and will be led by the professional staff of the Select Committee — including multiple former federal prosecutors — as well as members," reads the committee's letter to Trump, which asks him to inform them "promptly" if he intends to invoke his Fifth Amendment right against self incrimination.
Representative Liz Cheney, Republican of Wyoming and the committee’s vice chairwoman, said this week that if Mr. Trump refused to comply, members of the panel would “take the steps we need to take,” although it was unclear how successful any enforcement effort would be, particularly if Republicans win control of the House in next month’s elections. In that case, G.O.P. leaders, who fought the formation of the inquiry, boycotted it and have denounced it at every turn, would be all but certain to disband the committee upon assuming control in January. -NYT
The Friday subpoena seeks records of calls, texts, Signal exchanges or other communications surrounding January 6th, between Dec. 18, 2020 and Jan. 6, 2021. They are also looking into "handwritten notes; fund-raising appeals based on claims of widespread voter fraud; documents related to the Oath Keepers, Proud Boys or other militia groups; information about the planning of the rally that preceded the attack on the Capitol, the gathering of pro-Trump electors from states won by President Biden, and the pressure campaign against Vice President Mike Pence to overturn the 2020 election," according to the report.
The panel is looking specifically into communications with 13 Trump allies who 'played key roles in an effort to overturn the election'; Roger Stone Jr., Stephen K. Bannon, Michael T. Flynn, Jeffrey Clark, John Eastman, Rudolph W. Giuliani, Jenna Ellis, Sidney Powell, Kenneth Chesebro, Boris Epshteyn, Christina Bobb, Cleta Mitchell and Patrick Byrne.
As Jonathan Turley noted on Monday,
It is unclear if Trump will contest the subpoena, but he has contested virtually every previous subpoena in civil and criminal cases. The committee has, in my view, a solid case to compel him to testify. However, it had that case back at its creation on July 1, 2021; it simply waited until a subpoena may be impossible to enforce.
In football, they would be flagged for an “intentional grounding” for throwing a ball where there was no viable receiver or “a realistic chance of completion.”
Two points were immediately emphasized by the committee and its supporters in the media.
First, some of the coverage highlighted that this was “unanimous” without recognizing the irony of that distinction. House Democrats barred two Republican members originally selected by GOP leaders, who then boycotted the panel in response. There is no indication the committee, hand-picked by Speaker Nancy Pelosi (D-Calif.), has ever had anything but unanimous votes. The only thing its members can cite for not being yes-men is that when there were demands for greater balance in witnesses or questioning, they all said “no.”
The second point is even more telling: The committee has precedent for former presidents being subpoenaed, such as Harry Truman — but that example is hardly helpful. Truman was subpoenaed by one of the most notorious panels in the history of Congress, the House Un-American Activities Committee, which was ridiculed for its lack of balance and due process.
While called “historic,” former presidents have been subpoenaed before, though it remains exceptionally rare. It is even more rare for them to testify. Truman never did; when Congress subpoenaed former presidents John Tyler and John Quincy Adams over the alleged misuse of funds, Tyler appeared but Adams submitted a deposition. Others, such as Bill Clinton, were subpoenaed to appear in civil cases or subpoenaed for documents, such as Richard Nixon.
The Jan. 6 committee had a noble mandate but failed to use it to offer a credible investigation for citizens across the political spectrum. From the first to the final hearing, it presented a one-sided narrative in a tightly scripted, packaged production. No defense or alternative explanations for key events or statements were allowed; witnesses were largely asked specific questions to get them to repeat what they said in previously recorded interviews, as members read from a teleprompter.
The committee could have been so much more. It could have followed the type of balanced inquiry that pursued allegations tied to the Pearl Harbor attack or Watergate. Even without Republican-appointed members, it could have insisted on balanced hearings with witnesses and dissenting views.
Nevertheless, the committee revealed important, often disturbing details. It was important for Americans to hear from figures like former attorney general Bill Barr and White House lawyers who struggled to counter unfounded advice given to Trump by outside lawyers on challenging the 2020 election. There were painful scenes of Capitol police overwhelmed at barricades and members of Congress hunkered down in offices.
Yet, the focus on a single approved narrative gave the hearings the feel of an infomercial selling a product that most of us bought two years earlier.
Subpoenaing Trump on the final scheduled hearing only reaffirmed how the committee was driven by political rather than investigative priorities. Indeed, the timing was embarrassingly transparent. While Trump could appear without a challenge or the Democrats could retain the House, few experts are predicting either outcome.
For more than a year, the committee said its investigation was focused on Trump’s intent and actions. Chairman Bennie Thompson (D-Miss.) explained that the subpoena was essential because “he must be accountable. He is required to answer for his actions on Jan. 6. So we want to hear from him.” Why, then, wait until the last hearing, especially if the House may flip to GOP control in a matter of weeks?
It seemed another case of planned obsolescence by the House leadership. In the first Trump impeachment, Speaker Pelosi imposed an arbitrary deadline for impeachment by Christmas. That deadline was then used as an excuse to hold only one hearing on the legal standard with only one Republican witness. (I was that sole witness.) This was reportedly ordered over the objections of House Judiciary Chairman Jerry Nadler (D-N.Y.) who raised the abandonment of both due process and precedent. Pelosi then delayed transmitting the impeachment articles to the Senate — destroying her own rationalization for the lack of hearings.
In the second Trump impeachment, Pelosi went one better: She ordered a “snap impeachment” that dispensed entirely with hearings and witnesses.
If Trump declines to appear before the committee on constitutional grounds, the House would likely run out of time for any challenge.
Thus, the only way to enforce this subpoena in time would be a “snap contempt” vote that does not wait for negotiation or judicial review.