Donald Trump’s attorneys have now accepted service of the subpoena issued by the January 6 select committee, setting into motion the countdown for the former US president to inform the panel investigating the Capitol attack whether he intends to cooperate with the congressional investigation.
The acceptance of the subpoena means Trump must settle on his response to the sweeping demand from the panel – requesting documents and testimony about contacts with political figures as well as far-right groups that stormed the Capitol – that will set him on a path without room for reversal.
Trump has several options to consider, which range from total noncompliance to some cooperation as he weighs whether to respond to the select committee’s subpoena, according to sources familiar with recent discussions circulating around the former president and various lawyers and advisers.
The noncompliance option revolves around the calculation that the subpoena essentially lacks teeth and is probably legally unenforceable, meaning he could simply decide to ignore the summons in its entirety.
Among other things, the sources said, the justice department’s internal opinions about current and former presidents having absolute immunity from testifying to Congress would suggest that Trump would not be prosecuted even if the select committee referred him for contempt of Congress.
The former president’s advisers have noticed, for instance, that the justice department declined to charge senior Trump White House official Dan Scavino with contempt after he refused to cooperate – and if that was the case for an adviser, it would naturally extend to the principal.
But whether Trump will follow the advice of his attorneys to ignore the subpoena remains unclear, in part because of the former president’s reflexive belief that he will always be his own best spokesman and can convince investigators that he should be exonerated, the sources said.
The idea is not merely theoretical: Trump expressed to aides immediately after the select committee voted to issue him a subpoena earlier this month that he might consider testifying as long as it is live and in public.
Part of the calculus is Trump’s desire to dominate people he considers to be inferior or who are his adversaries, an attitude that was on display in a rambling letter he sent to the select committee that amounted to a deluge of false claims about purported 2020 election fraud that spurred the January 6 Capitol attack.
Still, the former president appears to have become more attuned in recent years to the pitfalls of cooperating in investigations. With the special counsel probe into his ties to Russia, Trump ultimately submitted only written answers despite initially embracing testifying.
The select committee, for its part, issued the subpoena to Trump after its members decided a summons that puts the former president on the defensive from the outset would be advantageous to the investigation, people close to the committee said.
In drafting the subpoena, the panel asked Trump to respond to unresolved issues that the former president could directly shed light upon, and in some cases – such as his account of a January 6 conversation with then vice-president Mike Pence – perhaps only he has the ability to reveal.
Should Trump defy the subpoena, the select committee acknowledged, it might not have the legal recourse to enforce it since there is no legal precedent and probable litigation over immunity would take months as it winds through the courts – and potentially reach the supreme court.
The select committee also recognized that the subpoena would become moot at the end of the current Congress in January, when Republicans are widely expected to take the House majority and at which point they could introduce a measure to withdraw the summons.
But the members of the select committee concluded that if Trump was going to resist anyway, there were only benefits to issuing the summons: the panel could put all its questions in the subpoena letter, and if Trump complied even a little, it would yield some pertinent details for the investigation.
