Will Trump testify before Congress?
Constitutional law expert Michael Gerhardt predicts how the former president may respond to the Jan. 6 Committee’s subpoena.
The U.S. House Select Committee to Investigate the January 6th Attack on the U.S. Capitol subpoenaed former President Donald Trump on Oct. 21, requiring Trump to turn over documents by Nov. 4 and to appear for a deposition under oath on or about Nov. 14.
The action by the Jan. 6 Committee raises some interesting questions about the power of Congress to compel a former chief executive.
For insight into this unprecedented development, The Well called upon constitutional law expert Michael Gerhardt, Burton Craige Distinguished Professor of Jurisprudence at the School of Law. Gerhardt’s teaching and research focus on constitutional conflicts between presidents and Congress. He was one of four constitutional scholars called by the House Judiciary Committee during President Trump’s impeachment proceedings and served as special counsel to the Presiding Officer, Sen. Patrick Leahy, during Trump’s second impeachment trial.
What is the Jan. 6 Committee hoping to get from Trump’s testimony?
The committee might be hoping to get three things from former President Trump’s testimony: First, they might be expecting that his refusal will embarrass him. Second, they might hope that in responding he might say something contradicting prior response(s). Lastly, in responding to actions he does not like, Trump tends to accuse the other side of the very things that he is considering or doing.
Does Trump have to comply with the subpoena and, if he does, what form is his testimony likely to take?
Trump does have to comply with the subpoena. He has no legal basis for refusing to comply, though he will likely seek to obtain some political advantage from his refusal to comply. If he ever does reply to any questions, he could so in writing; however, any responses could also include his taking the Fifth Amendment — though it is important to remember that invoking the Fifth Amendment outside the context of a criminal proceeding does not protect Trump from having the committee, or the American people, draw negative inferences from his refusal.
If Trump refuses to comply with the subpoena, what is likely to happen next?
There are two likely things to happen if he refuses. The first is that the committee could cite him for contempt and then seek assistance from the Justice Department in enforcing the subpoena. The other possibility is that Trump could claim that he’s refusing to comply because the committee doesn’t have the right to subpoena him in the first place, while the committee would insist that it does have the right, which it would ask the Justice Department to enforce. And either side could go to court to prove they are right. He has no rights (other than the Fifth Amendment) to refuse compliance with the subpoena, but the committee or the Justice Department might be interested in determining whether he is abusing his Fifth Amendment rights in this context.s
