If the former president refuses the drama of testifying, his legal team could present several constitutional and procedural arguments in court.
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WASHINGTON – If former President Donald J. Trump decides to fight the extradition granted him Friday by the House committee investigating his efforts to overturn the 2020 election, his lawyers are likely to collect a slew of constitutional and procedural arguments for why a court should. let him not testify.
In the most basic sense, any legal arguments trying to get Mr Trump off the hook would need to be weighty enough to generate two and a half months of litigation. If Republicans pick up enough seats in the mid-term elections to take over the House in January, as polls suggest is likely, they are almost certain to shut down the committee on January 6, a move that would invalidate r subpoena.
The issues raised by the extraordinary subpoena, which the panel issued at a hearing last week, are too complex to be resolved definitively before a potential power shift in the House, said Mark J. Rozell, a George Mason University professor and author of “Executive Privilege: Presidential Power, Secrecy and Accountability.”
“We are in a constitutional gray area here where there is no clear guidance as to what exactly should happen,” said Mr Rozell. “That gives the former president some leeway to present various creative legal arguments and ultimately delay the process until it no longer matters.”
Several former presidents have voluntarily testified before Congress, including Theodore Roosevelt, William Howard Taft, Herbert Hoover, Harry S. Truman and Gerald Ford. But there is no Supreme Court precedent that says whether Congress has the power to compel former presidents to testify against their will about their actions in office.
There are two historical precedents, but neither produced court rulings. In 1846, the House impeached two former presidents, John Quincy Adams and John Tyler, for an investigation into accusations of misappropriation by a secretary of state. According to a report by the Congressional Research Service, Tyler testified and Adams submitted a deposition.
And in 1953, the House Committee on Un-American Activities pawned Truman. But although he later testified voluntarily before Congress on other subjects, Truman refused to honor the committee’s hostage, claiming that as a former chief executive he was immune from compelled testimony by the legislative branch. The House let the matter drop.
One open question, then, is whether Truman was right. If Mr. Trump’s legal team chooses to argue that it is, one Supreme Court precedent could be relevant: In 1982, the court ruled that former presidents are immune from being sued for damages over official decisions they made while in office.
In that case, Nixon v. Fitzgerald, the majority reasoned that presidents must be able to carry out their constitutional duties without being hampered by the fear that a decision might expose them to civil damages after they leave office. The question in Mr Trump’s case would be whether a president could be similarly hindered by fear of being forced to testify before Congress.
Mr.’s legal team could Trump also invoked executive privilege to try to stop the annexation. In another case involving Richard Nixon, the Court of Appeals for the DC Circuit ruled in 1974 that a Senate committee investigating the Watergate scandal could not compel then-president Nixon to turn over tapes of his conversations in the Oval Office over.
The appeal court ruled that the Senedd’s need for the tapes was not sufficient to overcome the presumption of secrecy that protects the presidential decision-making process. That general secrecy is important, the courts decided, so that presidents can receive good-faith advice from their aides about how best to carry out their constitutional functions.
(More famously, about three months later, the Supreme Court upheld a Watergate prosecutor’s objection to the tapes, citing the greatest need for them in a criminal case. Shortly thereafter, Nixon resigned to avoid impeachment.)
Unlike Nixon in 1974, however, Mr. Trump is now a former president — not a sitting one — and his claims of executive privilege would be weaker. The incumbent, President Biden, who has more authority to invoke or suspend executive privilege, may not support it.
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Notably, Mr. Biden refused to support an earlier attempt by Mr. Trump to invoke executive privilege to prevent the committee January 6 from subpoenaing the National Archives for White House records. The Supreme Court, which ruled against Mr Trump, refused to block the subpoena, although it did so in a way that left the scope of a former president’s powers under executive privilege unresolved.
Still, courts may view compelling a former president to appear at the Capitol and testify under oath as different from obtaining documents. Mr. Biden could also be more reluctant to establish a precedent that could help a Republican-controlled Congress subpoena him for testimony.
Mr Trump could also try to present a procedural argument that the subpoena is invalid.
That tactic has been used by nearly 30 people – among them, former aides to Mr Trump – who have filed lawsuits seeking to remove subpoenas from the committee on January 6. Many of these witnesses have argued that the improper composition of the panel and that the subpoenas are not sufficiently connected to the writing of laws.
The first argument goes like this: The House resolution authorizing the committee anticipated that Speaker Nancy Pelosi would appoint 13 members, including five in consultation with the Republican leadership. But the panel has only nine members, and neither of the two Republicans – Liz Cheney of Wyoming and Adam Kinzinger of Illinois – was approved by the minority leader, Representative Kevin McCarthy of California, who boycotted the process after for Ms. Pelosi to reject several of its members. choices.
As for the second, lawyers for the witnesses have argued that the subpoenas were not sent with the aim of assisting Congress in its role in drafting laws, but rather as a politically motivated fishing trip for embarrassing information about Mr Trump.
Most of the lawsuits challenging the subpoenas on these – and other grounds – are still working their way through the courts. But in May, a federal judge in Washington dismissed both arguments, claiming the subpoenas were invalid in a case brought by the Republican National Committee against the panel.
However, that ruling was vacated several months later by the Court of Appeals for the D.C. Circuit after the committee dropped its order for the Republican National Committee.
A Federal District Court judge also rejected claims that the committee’s subpoenas were invalid in the criminal prosecution of Stephen K. Bannon, a former adviser to Mr. Trump, who was sentenced to four months in prison on Friday for defying a subpoena from a House panel.
In a ruling in the case, Judge Carl J. Nichols, one of Trump’s appointees, noted that the full House voted to hold Mr. Bannon and others challenged subpoenas in contempt, stating that the body considered the committee’s subpoena valid. Judge Nichols said courts must defer to the House’s interpretation of its own rules, so it “cannot conclude as a matter of law that the committee has an invalid constitution.”
Still, rulings by district court judges are not definitive precedents, leaving much to litigation.
It also remains unclear what court path a fight against Trump’s order might take. Mr. could Trump filed his own suit asking a judge to remove it. Or he could wait for the House to try to enforce his plea.
One way for that to happen would be for the full chamber to vote on whether to hold him in contempt and refer the matter to the Department of Justice for possible criminal prosecution, as it did in Mr Bannon’s case.
It would then be up to Attorney General Merrick B. Garland to decide whether to bring criminal charges.
The January 6 committee could also file its own lawsuit against Mr. Trump is seeking a judicial order for him to comply. In August 2019, for example, the House Judiciary Committee sued Mr. Trump’s former White House counsel, Donald F. McGahn II, who, at the direction of Mr.
The lawsuit set off a series of convoluted legal battles over constitutional issues and was still pending even when Mr. Biden became president in January 2021. That underscores the lack of time for extended litigation in Mr. Trump’s case.
Mr Trump’s aides have said he has weighed whether he should testify, but only on the condition that he is live and on television. That would deprive the committee of controlling what is seen or of only releasing selected extracts.
Mr said. Rozell that was not surprising.
“If Trump is going to go out there and make himself vulnerable, he’s going to do it in a public way,” he said. “It’s going to be a Trump show, and he’ll be playing to his own crowd. At that point, argument and legalese would be out the window. “