The Daily - The Trump Subpoena

Episode Date: October 26, 2022

A few days ago, when the House committee investigating Jan. 6 issued a subpoena to former President Donald J. Trump, it raised a legal question: Can Congress compel a former president to testify?The committee’s move, while dramatic, is not without precedent.What do presidential subpoenas of the past teach us about the moment we’re in, and about what the former president might do next?Guest: Luke Broadwater, a congressional reporter for The New York Times.Background reading: The Jan. 6 committee issued a subpoena to Mr. Trump, paving the way for a potentially historic court fight over whether Congress can compel testimony from a former president.If the former president fights the subpoena, his lawyers are likely to muster a battery of constitutional and procedural arguments for why a court should allow him not to testify.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. Today. A few days ago, when the House Committee investigating January 6th issued a subpoena to Donald Trump, it raised an untested legal question. Can Congress compel a former president to testify? My colleague, Luke Broadwater, has been trying to figure that out.

It's Wednesday, October 26th. Luke, the last hearing of the January 6th committee ended not with any blockbuster revelations, which is what we have been trained to expect from them, but instead with a vote to subpoena former President Donald Trump. So take us back to that moment and walk us through how the committee explained that momentous decision. how the committee explained that momentous decision. So almost immediately, as soon as the hearing has gaveled in, the select committee to investigate the January 6th attack on the United States Capitol will be in order. I get a text message on my phone from a source who says,

scrap whatever you're writing. There's going to be a surprise. You know, I start pushing the person a little bit, and I quickly learn that they are getting ready to issue a subpoena to former President Trump at the end of this two-and-a-half-hour hearing. And so, you know, I let the editors know, I start texting everyone I know,

trying to get a second source. And I'm actually missing some of the hearing as this is going on, because I'm in the room trying to listen, trying to take notes and break a news story at the same time. And so we published the story about halfway through the hearing, with enough time to start watching

Bennie Thompson, the chairman, and Liz Cheney, the vice chairwoman, lead the rest of the hearing. During this committee's first hearing in July of last year, our witnesses were four police officers who helped repel the riots of January 6th. And as they're getting close to the end, Benny Thompson speaks up and he starts to remind us about why we're here in the first place. He talks about the officers in the front row who are seated right ahead of me

who were injured so badly in the attack. Officer Hodges was concerned about whether anyone in power had a role. Officer Dunn put it simply, get to the bottom of what happened. We've worked for more than a year to get those answers. And then he says one man is responsible for these things. We have left no doubt, none,

that Donald Trump led an effort to upend American democracy that directly resulted in the violence of January 6th. So we want to hear from him. And then he turns the microphone over to Liz Cheney. Thank you, Mr. Chairman. Mr. Chairman, our committee now has sufficient information to answer... And she lays out the case for why the committee must take this step. They must issue a subpoena to Donald Trump.

And she highlights why they need his testimony, because so many of his allies have refused to cooperate with the committee fully. She says more than 30 of them have invoked the Fifth Amendment against self-incrimination to refuse to answer the committee's questions. And she points out that others have refused to come in at all and are facing contempt of Congress charges. So she says we still have unanswered questions and the American people have unanswered questions. And every American is entitled to those answers so we can act now to protect our republic. So this afternoon, I am offering this resolution that the committee direct the chairman to issue a subpoena for relevant documents and testimony under oath from Donald

John Trump in connection with the January 6th attack on the United States Capitol. And after Liz Cheney's speech, the committee members all take a vote. Those in favor will say aye. Aye. And Republicans and Democrats, all nine of them. In the opinion of the chair, the ayes have it. Vote aye to issue the subpoena to Donald Trump. And it's a momentous decision because, of course, any subpoena involving the president is just a big deal.

Right, and in fact, you know, no committee has issued a subpoena to Donald Trump before, despite all the various investigations and impeachments. This is the first congressional committee to issue a subpoena to Donald Trump. So it was a significant step. And the subpoena seeks a wide variety of documents from Donald Trump that must be turned in by November 4th, ahead of the midterm election. Then, 10 days later, they have set on the calendar a deposition date for Donald Trump, November 14th. He is summoned to appear before the House Committee investigating the January 6th attack on the Capitol for what the committee says could be a multiple-day interview.

Wow, multiple days. That's how long they think it's going to take. They've blocked out three on their calendar. So, Luke, given what the committee has uncovered so far, and given what we know about the case that they are building, what's our understanding of what they think they can get from Trump in these documents or in these three days of testimony that will kind of help them finish out this work? Well, the committee has learned a lot about January 6th and the buildup to it, but they

still have some big holes in their investigation. And a lot of them concern things that they can only get from Donald Trump. For instance, they've uncovered emails and communications that show Donald Trump and some of his allies were planning to undermine the election weeks and months before anybody cast any votes. Why was that? What was in Donald Trump's mind at the time? Why was he so intent on subverting people's faith in the voting at the time? There are several different conversations he had where different Justice Department officials and experts tell him things he is saying about voting fraud are wrong, that these things didn't happen. Right.

Why did he continue to lie about that after learning it was false? I'm sure they'd like to ask him about that. How involved was he in the plan to put forward fake electors? Why did he entertain seizing voting machines? Why did he amass a crowd of people to come to the Capitol on January 6th? And once they turned violent, why did he wait so long to call them off? Specifically, they want to ask him about a tweet he sent at 224 in the afternoon while the Capitol was under siege, and he railed against Mike Pence, the vice president, in that tweet.

Why did he do that? Didn't he think that was dangerous? Didn't he think that was irresponsible? So these are the type of questions they want to ask him. And there's only one man who knows the answers to these questions. And that's the person at the center of it all. That's Donald Trump. And supposing they get him to offer some answers, how would those answers in theory fit into the question of actual criminal charges, which you have told us this committee may ultimately recommend be brought against Trump at the end of this process? With respect to several of the criminal charges that they've been considering, for instance, obstructing an official proceeding of Congress and conspiracy to defraud the United States, both of those could rest on Donald Trump's mindset and intent during them. If he knows what he's doing is false, if he knows the things he's saying are lies, well, that will bolster the case

to saying that he was defrauding the American people. And if he intended for this mob to get out of control, for the count to be obstructed, for the proceedings to be delayed, or even encouraged it or did nothing to stop it, that could help bolster the case for obstructing an official proceeding of Congress. Right, because as you've told us in the past, Luke, the evidence that the committee has gathered so far, it has frequently told us that Trump knew something or did something around January 6th, you know, set an event into motion, but it didn't tell us what he wanted to happen. It doesn't tell us his intent. Right.

And so the committee has tried to fill in those gaps through circumstantial evidence, right? We've heard testimony that Donald Trump knew the crowd was armed and yet wanted them to come closer to the stage anyway, right? And we've heard evidence that he said, fight like like hell and he seemed to fire up the crowd. And then we've heard evidence that he was made aware that people were attacking the Capitol and that Vice President Mike Pence's life was in danger and didn't do anything about it. But he hasn't really been asked directly or spoke directly about under oath and under questioning the question of, did you want people to attack the Capitol? Did you think it was useful for people to put a bunch of pressure

and intimidate lawmakers into getting what you wanted? And that was to stay in office. We've heard circumstantially about him raging in the SUV because he wants to go to the Capitol, right? He wants to be with those people. Why was he raging? Why was he irate? Mr. President, answer the question. You can sort of see how this would play out with Liz Cheney on the other end of the table asking him these direct questions under oath. Well, given how central Trump's testimony could be to all those charges and questions that you just raised, why do we think the committee waited so long to issue this subpoena? It's been over a year, right?

testify because they're running out of time and it's only a little more than two months before the committee will dissolve. So they did gamble on this, I would say. But the committee's thinking, if you talk to some of the people involved with its work, is that this was how they were building their case. And so I think it's important for the listeners to remember that it's not just politicians on this committee. They've assembled a team of former federal prosecutors who are running this investigation, including former U.S. attorneys. And so this is how they do things in federal investigations. They start with lower players. They build their way up to bigger players. And finally, they build their way up to the top man.

And it was their belief that when they did finally attempt to interview Donald Trump, that they should have as much evidence in hand as possible so that if he starts to dissemble or misdirect, they can counter him with facts at every turn to try to pin him down. So let's turn to what Trump has done and what we think he will do in response to this subpoena. What do we know so far? So we know Donald Trump has hired a law firm specifically to deal with this subpoena, and that they have said in a public statement to us and to others that they are reviewing the subpoena and will respond. That's pretty much it publicly. Now, behind closed doors, we know that Donald Trump has

been telling some of his aides that he would like to testify, but only if he can do it live so that it's not behind closed doors, it's not edited. He would come in and create a big show and a big circus. And if that is ultimately what Trump's legal team offers up to the committee, I think there would be some discussion about whether they should accept it. I've talked to several people on the committee who, while they don't want to turn it into a circus, they do think that there's a huge benefit to putting Donald Trump under oath and having him answer questions in any format, even if that is at an hours-long, days-long public hearing, and that they would be quite open to it. it. But I think that it's far more likely Donald Trump never testifies and that, in fact, he files a lawsuit trying to block the committee's subpoena. I say that because in the impeachment inquiries, Donald Trump tweeted that he was considering testifying and then, of course, never did. We never heard him testify before Congress. So right now we're in a bit of a cat and mouse game,

I would say, to see if they can coax him into testifying, and if so, under what terms. Well, Luke, if the president tries to avoid the subpoena, won't there be legal consequences for him? We have seen that in other cases of people who have tried not to testify before this committee. We have seen that in other cases of people who have tried not to testify before this committee. Right. Well, the committee, if they so choose, could refer a recalcitrant witness on contempt of Congress charges. And the most recent example of this is we just saw Steve Bannon, the former Trump advisor, get sentenced just last week to four months in jail because he refused to comply with a January 6th committee subpoena. Right. And so that is a step the committee can take if they so choose. And wouldn't that be something Donald Trump would therefore fear? Well, there is a chance that he could face a similar charge.

But the president is a unique position that is quite different than being a former advisor to the president, which is what Steve Bannon was. And so Donald Trump may have some constitutional protections against testifying in a congressional investigation that are not available to Steve Bannon. But that is a question that has never fully been litigated. And former presidents have responded to congressional subpoenas in very different ways. We'll be right back. Luke, before the break, you mentioned that previous former presidents have faced the exact

same situation as Trump. They have been subpoenaed after they left office, which is news to me, and I suspect news to our listeners. So what happened in those cases, and how did they get resolved? Yes. Well, let me take you all the way back to 1846. Yes. Well, let me take you all the way back to 1846. Congress is investigating what they say is a misuse of a Secret Service Fund. And as part of the investigation, they want access to certain records that would have to be authorized by former presidents. And so they issue subpoenas to John Tyler and John Quincy Adams. And both men see it as their duty to comply.

John Tyler sits for testimony, and John Quincy Adams submits a written deposition laying out the various uses of this fund in question. Ultimately, the committee finds no wrongdoing and no charges are ever brought against anyone. And that was the standard for a long time. I mean, one classic example is an investigation that was taking place in 1911. example is an investigation that was taking place in 1911. And Theodore Roosevelt, Teddy Roosevelt, the famous president on Mount Rushmore, comes to testify. He's a former president at this point. And he says an ex-president is merely a citizen of the United States, like any other citizen, and it is his plain duty to try to help this committee or respond to its invitation. It is his plain duty to try to help this committee or respond to its invitation.

So over and over again, presidents generally see it as their duty to comply with congressional investigations. Then we get to 1953. After he'd received a congressional subpoena, the New York visit of ex-president Harry Truman became quite a bustling affair. And former president Truman is being investigated by the House Un-American Activities Committee. It was said that a man named Harry Dexter White had been promoted to high office after the FBI had reported that he was a spy for Russia. They are looking into what they say are allegations that he knowingly appointed a Russian spy

to a post. And Truman views this committee as out of control. It's the heyday of McCarthyism. There's sort of a witch hunt against him, in his view. He read his decision to the press. The subpoena does not state the matters upon which you seek my testimony, but I assume from the press stories that you seek to examine me with respect to matters which occurred during my tenure of the presidency of the United States. In spite of a personal willingness to cooperate with your committee, I feel constrained by my duty to the people of the United States to decline to comply with the subpoena.

And so he rejects the committee and he says he's not going to testify. And what's his rationale for not complying with a congressional subpoena, given that previous presidents have all complied with them? Well, he cites the doctrine of separation of powers, and he says that the presidency would be diminished if it had to respond and submit to Congress at Congress's whim whenever Congress wanted. It would make the presidency much weaker than Congress. But he's no longer president when he gets this subpoena. Right. And so he is arguing that this separation of powers extends to a past president as well. And he says, it must be obvious to you that if the doctrine of separation of

powers and the independency of the presidency is to have any validity at all, it must be equally applicable to the president after his term of office has expired when he is sought to be examined with respect to any acts occurring while he was president. with respect to any acts occurring while he was president. So there's his argument. It's that I retain the independence of the presidency, even as a private citizen. And that argument went unchallenged. Truman gives a speech that night,

laying out what his view of the facts were about the investigation. So he does talk to the American people about what happened, but he maintains he shouldn't have to testify before this committee. The committee essentially drops the matter. They don't test it in court. And so to this day, we don't know who was right. A court has never decided about who was correct in that interaction. Did President Truman have to comply with the subpoena? A court has never decided about who was correct in that interaction. Did President Truman have to comply with the subpoena? A court has never said. So do we suspect that Donald Trump might make a similar argument about separation of powers?

I would suspect that if Donald Trump sues to block this committee, which most legal analysts believe he will, and it's long been Donald Trump's tactic to sue Congress to block such inquiries, that he would point to the Truman Doctrine, so to speak, the Truman comments that day, as precedent even, of how one former president rejected a subpoena and that rejection stood. Okay, well, let's presume for just a moment that Donald Trump adopts Truman's separation of powers argument. And let's presume that the committee does not just let it go the way it did back in 1953, but instead engages with this argument legally. Do we know if this argument,

the Truman slash Trump argument, let's call it that for our purposes, is considered a strong legal argument? Like you said, it's never really been tested in court. Is it considered legitimate or is it considered a stretch? Well, the thing about it being untested is that it's untested. I honestly do not know. You know, you could start to look at the makeup of the Supreme Court and see what their views are about the powers of the executive and the residual effects of executive privilege on a past president.

You know, the Supreme Court has sided with the January 6th Committee already about a National Archives case. That case was decided 8-1. But I think this is a much different matter. This is not whether the committee has access to documents in the archives. This is whether the committee can compel a past president to sit in front of them and answer questions, that's a much different case.

Right. And we don't know how the Supreme Court would view such a case. Right. And if that happens, if this becomes a big, drawn-out legal battle, where exactly does that leave the January 6th committee? Because as you said earlier in our conversation, Luke, its work is winding down. Its deputy, Liz Cheney, has just lost re-election. Republicans are quite likely to take control of the House. They're not going to keep up this investigation. They don't seem enthusiastic

about this subpoena. So if we're talking about a months-long legal battle over whether Trump ever testifies before this committee, does that mean we're almost guaranteed to never see him testify before this committee? That's very likely that they never get him to testify. There is another scenario, though, that could mean some legal jeopardy for the former president. Let's say November 14th comes and goes and he doesn't testify. The House is back. The midterms are over. Even if the Democrats have lost the House, they'd still have power until a new Congress is sworn in in January. And the January 6th committee recommends a contempt of Congress referral against Donald Trump. It goes to the full House. The Democrats have the vote. They pass it.

And now a contempt referral has been sent in November, with the Democrats still in control, to Merrick Garland, to the Justice Department, with the orders to bring this to a grand jury. They could choose to charge him, and then there would be a legal case, just like with Steve Bannon. Now, that legal case could take years or many months. I mean, the Bannon case took, I think, about a year. But once a criminal case is underway, that's now out of the political arena and into the criminal system, and it wouldn't matter who's in charge of Congress anymore. Luke, if at the end of this process, the January 6th committee were to secure a contempt of Congress' charge against Trump

and all that that implies, would that be a success for this committee, or would that be something else? Well, I think it would be very in keeping with this committee's central mission.

Because remember, the committee's job here is to get to the bottom of what happened with January 6th. And that's the goal of a subpoena, too, is to get documents, to get testimony, to get information. And so whether that's a success or a failure, if they did go forward to try to enforce a subpoena, what they would be saying is that Donald Trump, the person at the center of January 6th, has to come forward and testify about his role in these historic events and that we are serving our mission as laid out by Congress. And that we are serving our mission as laid out by Congress.

And that mission is to get answers. And we will do whatever it takes to enforce a subpoena to get those answers. Well, Luke, thank you very much. Thank you. We'll be right back. Here's what else you need to know today. In an embarrassing reversal, 30 Liberal House Democrats have rescinded a high-profile letter released on Monday that called on President Biden to negotiate directly with Russia to bring an end to the war in Ukraine. The letter triggered a fierce backlash from Ukrainian officials and fellow Democrats who said it

undermined the party's support for Ukraine and naively put faith in Vladimir Putin. The reversal came after many Democrats who had signed the letter began publicly disavowing its message. And on Tuesday, the global fashion brand Adidas became the latest and most high-profile company to end its relationship with Kanye West after the pop star made a series of anti-Semitic remarks and embraced a slogan associated with white supremacists. premises. By cutting ties with West, who designed clothing for it, Adidas said it would lose nearly a quarter of a billion dollars this year alone. Today's episode was produced by Asla Chaturvedi and Luke Vanderplug. It was edited by John Ketchum, contains original music by Dan Powell and Marian Lozano, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Lansford of Wonderly. That's it for The Daily.

I'm Michael Barbaro. See you tomorrow.