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The Jan. 6 committee voted to subpoena Donald Trump. Here's what may come next

Former President Donald Trump faces a subpoena regarding his alleged involvement in the Jan. 6, 2021, insurrection at the U.S. Capitol.
Brendan Smialowski
/
AFP via Getty Images
Former President Donald Trump faces a subpoena regarding his alleged involvement in the Jan. 6, 2021, insurrection at the U.S. Capitol.

Donald Trump is not known for cooperating with investigations that target him or his businesses.

So now that the congressional committee investigating the Jan. 6, 2021, attack on the U.S. Capitol has voted — unanimously — to subpoena him, you have to wonder about the former president's next move.

Democratic Rep. Jamie Raskin of Maryland, a member of the House select committee, told NPR on Friday that Trump doesn't really have a choice.

"Multiple presidents and seven former presidents have come to testify before Congress, several of them voluntarily," he said. "His being a former president does not entitle him to skip out on the law."

Aziz Huq is a professor of law at the University of Chicago, where he focuses on constitutional law, and he joined All Things Considered to parse what comes next.

This interview has been lightly edited for length and clarity.


Interview highlights

On whether Trump can ignore the subpoena

A subpoena is a lawful order to produce either documents or to testify. But a subpoena needs to be enforced. Congress has to take a couple of steps before this subpoena would be enforced, and it is likely that any of the paths that it took would require a good deal of time and would give the former president a number of opportunities to delay the process beyond the life span, at least, of the current Congress.

On what penalties he may face if he does not cooperate

The committee has two basic options. The first is that it could refer the case to the Justice Department for prosecution. There is an 1857 statute that allows prosecutions for contempt of Congress. Indeed, Steve Bannon was just convicted under that statute.

The second option the committee has is to proceed in court itself using a civil suit to compel performance by the former president under the subpoena's terms. If the committee takes that second route, there's a possibility of civil contempt sanctions, which might be a fine and, in rare cases, imprisonment.

If they take the criminal contempt route, and the Justice Department were to agree to bring a case, and a court were to find the former president in contempt, that could be a sentence of up to one year and a fine of up to $1,000.

On what would happen to the Jan. 6 committee if Republicans win the House in the upcoming election

If the Republicans gain control of the House in November, the new majority would have power both to wind up the Jan. 6 committee and also to withdraw the subpoena against the former president. In that case, the former president would not have any legal concern with respect to producing information for a committee that no longer existed.

On what the point of the subpoena is from a legal standpoint

Obviously, the committee is making a point about the former president's involvement in the Jan. 6 events. It's making a point about the alleged criminality of the former president's alleged involvement.

It's not completely impossible that you would see some kind of a legal consequence from this. The way that I would imagine that playing out is the committee deciding after the November election to bring a criminal referral to the Justice Department, and the Justice Department proceeding with that criminal referral against the former president even after the House has changed hands.

I think that that course of action would present a number of quite unprecedented legal questions about, for example, whether a subpoena could be pursued with criminal contempt charges after the subpoena itself has been withdrawn. But it, at least, is imaginable given the current political landscape.

On whether the issue raises concerns on the separation of power

This kind of dispute is unusual in that it immediately draws in all three branches of government. There's immediately a question of whether the legislature should go to the courts, whether the attorney general has to bring a prosecution. Once the Congress has indicated it wishes him to do so, and there's a question of whether executive privilege or some other executive branch entitlement prevents either the court acting or the legislature acting. So, absolutely, there are separation-of-power issues at stake. Perhaps what makes this story distinctive is the complexity and the entanglement of those issues because of the involvement of all three branches.

The members of the House committee investigating the Jan. 6 Capitol attack held a hearing on Oct. 13 in which they voted to subpoena Trump.
Mandel Ngan / Pool/AFP via Getty Images
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Pool/AFP via Getty Images
The members of the House committee investigating the Jan. 6 Capitol attack held a hearing on Oct. 13 in which they voted to subpoena Trump.

On whether there is a mechanism to hold such a high-level figure accountable

I certainly think it is possible to imagine a Congress creating an appropriately nonpartisan mechanism for investigating and pursuing sanctions or accountability for high-level criminality within the executive branch. We've tried to do that on a couple of previous occasions, and at least now doing so would run up against interpretations of the Constitution that have been adopted by the Supreme Court in the last decade or so. So I do think that it's possible to imagine an effective scheme for high-level accountability. The problem today, however, is interpretations of the Constitution by the U.S. Supreme Court that would preclude those measures from being put into place.

Copyright 2022 NPR. To see more, visit https://www.npr.org.

Mary Louise Kelly is a co-host of All Things Considered, NPR's award-winning afternoon newsmagazine.
Sarah Handel
Jonaki Mehta is a producer for All Things Considered. Before ATC, she worked at Neon Hum Media where she produced a documentary series and talk show. Prior to that, Mehta was a producer at Member station KPCC and director/associate producer at Marketplace Morning Report, where she helped shape the morning's business news.