• Show Notes

Note From Elie is part of the free weekly CAFE Brief newsletter.

Sign up free to receive the CAFE Brief in your inbox every Friday: cafe.com/brief

Become a member of CAFE Insider: cafe.com/insider

Dear Reader,

This could be Donald Trump’s chance, finally, to join George Washington and Abraham Lincoln in the history books – maybe not quite in the way Trump would’ve hoped, but it’s his big opportunity, nonetheless. You see, our two most revered chief executives are among the few who have ever testified in front of Congress. Now, with the January 6 Committee’s subpoena to Trump, he can do the same.

He won’t, of course. It didn’t take an expert in the law or human psychology or common sense to see immediately that Trump would defy the Committee’s subpoena. He quickly all but confirmed the same, publicly and predictably denouncing the Committee and its effort to procure his testimony in a wild, rambling missive that my CNN colleague John Avlon aptly characterized as “vomit.” 

So where does the Committee’s subpoena to Trump fit in the broader perspective? Let’s take a quick spin through American history. A smattering of sitting presidents have in fact testified in Congress: Washington in 1789 (about treaties with Native Americans), Lincoln in 1862 (long story short: a draft of a Lincoln speech to Congress leaked to the media, Congress flipped out and accused a Lincoln family member of spilling it, and Lincoln went up to the Hill to tell them it wasn’t so), and Woodrow Wilson in 1919 (Jersey’s own, on whether to join the League of Nations; hard pass). Most recently, Gerald Ford testified shortly after taking office in 1974 in defense of his decision to pardon Richard Nixon (who will come up again later, as you might have guessed). We’ve also seen former presidents testify in Congress, largely about non-controversial or ceremonial topics – most recently Ford, in 1983, around the bicentennial of the Constitution. 

But none of these chief executives testified under compulsion of a subpoena. They all testified voluntarily (in the legal sense, even if they weren’t necessarily thrilled about it). We have, however, seen Congress subpoena presidents to compel their testimony or other evidence – and that’s when the situation gets thornier. In 1848, the House subpoenaed and obtained statements from two former presidents, John Tyler and John Quincy Adams, about alleged misuse of funds by one of their former Cabinet members. The House subpoenaed Harry Truman in 1953, during the “Red Scare” of the Joseph McCarthy era; Truman refused to comply, made a public statement decrying McCarthyism, and Congress backed off. 

Perhaps most famously, a Senate committee in 1974 subpoenaed Nixon for his secret White House tapes relating to the Watergate scandal. Nixon challenged the subpoena in federal court, and won. But the victory was short-lived. Months later, the Watergate special prosecutor sent Nixon a grand jury subpoena for the same tapes; Nixon fought that one in the courts too, but lost, this time in the Supreme Court. The tapes came out and, less than three weeks later, Nixon was a goner. 

Most recently, in 1998, independent counsel Kenneth Starr issued a grand jury subpoena to Bill Cinton relating to the then-president’s affair with Monica Lewinsky and the ensuing cover-up. Clinton wasn’t happy about it, but he agreed to testify under carefully negotiated conditions. Clinton’s ensuing testimony left us with an indelible quote that will ring through the history of lawyerly hair-splitting: “It depends on what the definition of ‘is’ is.”

So now that Trump has been subpoenaed, where will he land on the historical spectrum? We already know Trump won’t comply, so the ball is back in the Committee’s court. If they’re serious about compelling his testimony, the Committee has two legal avenues. 

First, the Committee can seek an order from a federal judge requiring Trump to comply. But that would take months, at least – the fight over the Don McGahn subpoena got stuck in the courts for nearly two years – and the Committee simply doesn’t have anywhere near that much time left.

Second, the Committee can do to Trump exactly what it already has done with other recalcitrant subpoena recipients: hold him in contempt and then send the case to the Justice Department for potential criminal prosecution for contempt of Congress. Timing concerns are mitigated a bit here. So long as the House sends the case over to DOJ before the next Congress convenes in January 2023 – and the timing of any such referral is entirely up to the House itself – then DOJ is free to charge, even after the next Congress is sworn in, and even if the House flips over to Republican control. 

Thus far, both the Committee and DOJ have an uneven record on criminal contempt. The Committee has chosen its battles selectively, holding four people in contempt (Steve Bannon, Peter Navarro, Mark Meadows, and Dan Scavino) while passively accepting ostentatious defiance by Kevin McCarthy, Jim Jordan, and other House members (a little in-house solicitude for their congressional colleagues, it seems). The Justice Department, for its part, has indicted two of the four – Bannon, who has now been convicted and will be sentenced later today, and Navarro, who goes to trial next month – while granting free passes to Meadows and Scavino. A .500 batting average is superb in baseball, but less so when it comes to subpoena enforcement. 

So the Committee can pursue the case in civil or criminal courts, if it so chooses. But the most likely outcome is that the Committee chooses door number three: do nothing at all. The Committee can then deploy the rhetorical argument that seemingly motivated the subpoena in the first place: Trump constantly complains that the process is unfair and nobody is telling his side of the story; well, we invited him, and he ducked for cover

It’s an important point, and one worth making to the public and for the historical record. For all his public bluster about the unfairness of the Committee’s process, Trump has never made even a halfhearted effort to defend himself on the merits. Now, the Committee has called that bluff, in a sense. The Committee has invited Trump – technically, given the subpoena, they’ve sought to compel him – to come in and testify, under oath. His refusal speaks powerfully.

When Gerald Ford gave his aforementioned testimony to Congress in 1974, shortly after the Nixon pardon, he explained: “I wanted to do all I could to shift our attentions from the pursuit of a fallen President to the pursuit of the urgent needs of a rising nation…” In Ford’s view at the time, those two goals – pursuing a “fallen President” and protecting the broader priorities of the country – were mutually exclusive. Now, two generations later, the Committee has made its case that they are one and the same. 

Stay Informed,