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Trump Subpoena Sets Up Potential Legal Test

In what is shaping up as a potential constitutional clash — or a mere postscript to the upcoming midterm elections — the House committee investigating the Jan. 6 Capitol attack issued its subpoena to former President Donald Trump with a wide range of demands for testimony and documents, the New York Times reports. The subpoena and supporting documents demanded phone calls, texts, encrypted messages and email related to nearly every aspect of Trump's effort to invalidate the 2020 election. “As demonstrated in our hearings, we have assembled overwhelming evidence, including from dozens of your former appointees and staff, that you personally orchestrated and oversaw a multipart effort to overturn the 2020 presidential election and to obstruct the peaceful transition of power,” Rep. Bennie Thompson (D-MS) and Rep. Liz Cheney (R-WY), the leaders of the committee, wrote to Trump Friday. They said the panel’s request was “narrowly focused” on information that the former president was “uniquely positioned to provide.” The subpoena to Trump requires him to turn over documents by Nov. 4 and to appear for a deposition under oath on or about Nov. 14 that it says could last several days.


The issues raised by the extraordinary subpoena are too complex to be definitively resolved before a potential change of power 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 exactly what should happen,” Rozell said. “That gives the former president some leeway to put forward various creative legal arguments and ultimately delay the process until it doesn’t matter anymore.” There are two historical precedents, but neither generated court rulings. In the latter case, the House Committee on Un-American Activities in 1953 subpoenaed former President Harry Truman. While Truman later voluntarily testified before Congress on other topics, he refused to honor the subpoena, claiming executive immunity. The House let the matter drop. Should Trump's legal team make a similar claim, one Supreme Court precedent could prove 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 perform their constitutional duties without being inhibited by the fear that a decision could risk making them liable to pay civil damages after they leave office. The question in Trump’s case would be whether a president could be similarly hindered by a fear of being forced to testify in front of Congress. If Republicans take control of the House in next month's election, however, they are likely to disband the Jan. 6 committee and render the subpoena moot.

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A daily report co-sponsored by Arizona State University, Criminal Justice Journalists, and the National Criminal Justice Association

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