Brendan Smialowski/AFP via Getty Images
Donald Trump is not known to have cooperated with any investigations that target him or his companies.
So now that the congressional committee investigating the January 6, 2021 attack on the U.S. Capitol has voted — unanimously — to subpoena him, you have to wonder what the former will do next. President.
Democratic Representative Jamie Raskin of Maryland, a member of the House Select Committee, told NPR on Friday that Trump didn’t really have a choice.
“Several presidents and seven former presidents have come to testify before Congress, many of them voluntarily,” he said. “The fact that he is a former president does not give him the right to evade 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 analyze what comes next.
This interview has been lightly edited for length and clarity.
On whether Trump can ignore the subpoena
A subpoena is a legal order to produce documents or testify. But a subpoena must be executed. Congress needs to take a few steps before this subpoena is enforced, and it’s likely that one of the paths it took would take a long time and give the former president a number of opportunities to delay. the process beyond the lifetime of, at least, the current Congress.
On what penalties he can incur if he does not cooperate
The committee has two basic options. The first is that he could refer the case to the Department of Justice for prosecution. There is an 1857 law that authorizes prosecution for contempt of Congress. Indeed, Steve Bannon has just been sentenced under this law.
The second option available to the committee is to sue in court itself using a civil action to compel the former president to comply with the terms of the subpoena. If the committee takes this second route, there is the possibility of penalties for civil contempt, which could be a fine and, in rare cases, imprisonment.
If they go the criminal contempt route and the Justice Department agrees to press charges and a court finds the former president guilty of contempt, that could result in a sentence of up to a 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 next election
If Republicans take control of the House in November, the new majority would have the power to both dissolve the Jan. 6 committee and withdraw the subpoena against the former president. In this case, the former chair would have no legal concerns about producing information for a committee that no longer exists.
What is the use of the subpoena from a legal point of view
Obviously, the committee is taking stock of the former president’s involvement in the events of January 6. He makes a point about the alleged criminality of the alleged involvement of the former president.
It is not entirely impossible that you will see some sort of legal consequence of this. The way I imagine it plays out is that the committee decides after the November election to make a criminal referral to the Department of Justice, and the Department of Justice makes that criminal referral against the former president even after the Chamber has changed hands.
I think this course of action would raise a number of unprecedented legal questions, for example, whether a subpoena could be pursued with criminal contempt charges after the subpoena itself has been withdrawn. But that, at least, is imaginable given the current political landscape.
On whether the issue raises concerns about the separation of powers
This kind of dispute is unusual in that it immediately involves all three branches of government. Immediately there is the question of whether the legislator should go to court, whether the Attorney General should sue. Once Congress has indicated that it wishes it to do so, the question arises whether executive privilege or some other executive right precludes either the court from acting or the legislature from acting. ‘to act. So, absolutely, there are separation of powers issues at play. What perhaps sets this story apart is the complexity and entanglement of these issues due to the involvement of all three branches.
Mandel Ngan/Pool/AFP via Getty Images
On whether there is a mechanism to hold such an important figure to account
I certainly think it’s possible to imagine a Congress creating a suitably non-partisan mechanism to investigate and pursue sanctions or accountability for high-level criminality within the executive branch. We have tried to do this a few times in the past, and at least now it would run counter to interpretations of the Constitution that have been adopted by the Supreme Court over the past decade. So I think it’s possible to imagine an effective high-level accountability system. The problem today, however, is the interpretations of the Constitution by the United States Supreme Court that would prevent these measures from being put in place.
Manuela López Restrepo adapted this interview for the web.