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

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

That is as far as the fight will go, I’d wager. Each side has good reason not to test its luck by filing suit.

Of course, a fight would not be in question if the former president chose to comply with Congress’ legal demands. There are reports that Trump, supremely confident of his ability to dominate any public setting, is actually eager to testify.

That’s hogwash.

Any protestations by his lawyers that they are having to physically hold Trump back from showing up and raising his right hand are all theater. They know his inevitable fabrications would subject him to perjury charges, ones that the Department of Justice would have no choice but to act on.

The members of the Jan. 6 committee are sensible enough (and many are jaded enough from dealing with Trump’s head fakes during two impeachments) to anticipate that their lawful command will be snubbed.

They’re also sensible enough to realize that litigation to attempt to force the matter would only undermine the broad mission the committee has pursued splendidly to date.

The Trump subpoena expires with the Congress that issued it. During the first week in January, when the next term opens, it will be a dead letter. And if, as expected, a new Republican majority takes over in the House of Representatives, it is far more likely to investigate the Jan. 6 committee than to revive its legal status.

So the committee may have just 10 weeks or so until it turns into a pumpkin. At the plodding pace of federal lawsuits, that’s barely enough time to get out of the gate.

There’s a further complication. Any attempt to get Trump to testify would require a vote by the entire Congress to find him in contempt. The Democrats would still have their slim majority in a lame-duck session, but it’s far from clear that they would all be united in putting themselves on the wrong side of the Republican powers-to-be.

Even if a contempt resolution were forthcoming, the next step — referring Trump to the Department of Justice for criminal charges — is another iffy proposition. It worked with Stephen K. Bannon, who defied a committee subpoena issued in 2021. In October, Bannon was sentenced to four months in prison and fined $6,500.

But it’s far from certain that the Justice Department would agree to bring a criminal the case against Trump. That’s because it’s unsettled law whether a former president can be held in contempt for rebuffing a congressional subpoena.

In fact, the department’s Office of Legal Counsel, in a pesky memo written in 2007, has already suggested it isn’t legal, invoking the historical example of President Truman. Truman, then out of office, refused to comply with a subpoena to testify to the House Un-American Activities Committee in 1953 and Congress didn’t pursue the matter. He later voluntarily testified to another committee, as have sitting presidents. Some have cooperated in varying degrees with subpoenas, but that doesn’t prove they can be compelled to do so.

Given the short timeframe and the chance for a well-publicized loss if the Justice Department refused to charge Trump, it’s questionable that the Jan. 6 committee would even try for a criminal referral.

But what about Trump? Several commentators have suggested that he might bring the fight to the committee by filing his own suit to quash the subpoena.

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

First, notwithstanding the DOJ’s Truman memo, the issue is unsettled and Trump would face strong arguments that the law requires his testimony. During the Watergate investigations, when President Nixon tried to withhold White House tapes from investigators, the Supreme Court ruled that any executive privilege had to give way to a demonstrated law-enforcement need for evidence.

Even if Trump and his attorneys think they could buck that precedent in the Supreme Court, they would probably lose — spectacularly — in lower courts. Why run that gauntlet and suffer the bad PR when there is a readily available, Trumpian alternative — delaying while maintaining the pretext of possible compliance.

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

These tactics would inaugurate a period of ostensible negotiation between Trump and the committee — a fairly customary state of affairs in congressional subpoena practice. A couple rounds of faux diplomacy would take him into December, putting it to the committee to force the issue or let it lie.

And as to that, see above.

In the end, is the much-heralded Trump subpoena no more than an empty gesture? Not at all.

As the members of the Jan. 6 committee have surely known all along, subpoenaing Trump won’t add significantly to the evidentiary record. But his pugnacious defiance of their demands could provide an exclamation point for what promises to be a damning final committee report on his conduct.

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

@HarryLitman