🗳️Explainer: Trump subpoena and the looming midterm elections

The deadline for Trump to deliver subpoenaed documents arrives today. It's a reminder that the insurrection isn't over.

Nov 4, 2022

After a summer hiatus from the mic-drop witness testimony of former White House chief of staff Mark Meadows’s top aide Cassidy Hutchinson, Ivanka Trump and former attorney general William Barr, and with mid-term elections looming, it’s important to get the Jan. 6th House Committee’s effort back on voters’ radar.

On Oct. 21, 2022, the Select Committee issued a subpoena to former President Donald Trump for testimony under oath and for records relevant to the Select Committee’s investigation into the Jan. 6, 2021 attack on the United States Capitol.

🚨Today is the deadline for Trump to turn over documents as part of the subpoena. The former president is unlikely to produce anything by day’s end. Meanwhile, Justice Department officials have reportedly discussed whether a Trump candidacy would create the need for a special counsel to oversee two sprawling federal investigations relating to the former president, sources familiar with the matter tell CNN.

Question: Is there any legal accountability if Trump doesn’t comply with congressional subpoena?

Answer: Yes - we’ve seen this before with recalcitrant Jan. 6 Committee witnesses (hint: Steve Bannon). An 1857 law says that failure to comply with a congressional subpoena for testimony or documents is punishable by one to 12 months imprisonment.

The House of Representatives or the Senate must vote to hold a noncompliant witness in "contempt of Congress" and refer that person to the U.S. Justice Department for criminal prosecution.

The Justice Department then decides whether to bring criminal charges.

Question: Yeah, but how do we see this playing out with the Trump subpoena?

Answer: Trump knows that delay is on his side. If the House switches to GOP control, this issue likely goes away, as investigations will turn to Hunter Biden under the new Congress. If Democrats lose control of the House before a court enters final judgment, a new Republican majority almost certainly will withdraw the subpoena. Democrats don’t have time to successfully get him held in contempt before them. Even if they retain control of the House, Trump can sue and ask a court to quash the subpoena. This would result in lengthy legal battle that could bump into a Trump candidacy for president, in which he’ll argue publicly that it’s all political witch hunt to keep him from a second term. (Thus the suggestion of a special counsel insofar as this applies to DOJ.)

“I was somewhat demoralized because I thought, ‘Boy, if he really believes this stuff, he has … become detached from reality.'” — Former attorney general William P. Barr, after telling Former President Trump that the idea the election was stolen was “bullshit.”

The Select Committee is poised to release a final report, presumably by the end of the year. But who really knows what’s going to happen with this committee between now and then.

Since July, it received approximately 800,000 Secret Service communications relevant to January 6.

And it finally spoke to Justice Clarence Thomas’s wife, Ginni Thomas, about her efforts to thwart Joe Biden’s legitimate win. As I explain in my column for The Guardian, getting to the bottom of her husband’s disturbing conflicts of interest goes beyond January 6 — it may be vital to saving the legitimacy of the U.S. Supreme Court itself. (But I’m not holding my breath, alas.)

Read Ginni Article Here

On what to expect from the Jan. 6th committee, I chatted with NPR’s and WBUR Boston’s Here and Now.

Take a listen:

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Key points to keep in mind, at least for now:

The midterm election will decide if the Jan. 6 House Committee continues to exist. If the GOP takes over the House, investigations will turn to Biden, leaving Jan. 6 behind.
A primary aim of the committee is to produce an official public record of events — and hopefully raise Americans’ consciousness around the coup attempt on Jan. 6th, 2021.
The committee could make a criminal referral to the Department of Justice, which would be under no obligation to act.

The committee’s work could also give rise to a raft of legislation aimed at preventing future coups. But with the exception of critical changes to the Electoral Count Act that recently passed the House, congressional Democrats haven’t done much on this front. Opportunity lost.

Compare the post-Watergate Congress, which did a bunch of important things legislatively to protect the integrity of democracy, as I explain in this law review article published last year with the University of Pennsylvania Law School.

Read Here

My co-author and I propose a list of legislative reforms that Congress should have — ideally — considered by now. The optimist in me hopes that one day it will translate into legislative reform. But there’s a lot to do first. Mainly…#VOTE.

This year’s legal news can be head-spinning, even to those of us who follow it closely.

Here’s a timeline of key events in Trump-related investigations since Jan. 6th, 2021

June 30, 2021: The House of Representatives narrowly voted to create a commission to investigate the Jan. 6th Capitol insurrection.

Jan. 13, 2022: The Department of Justice unsealed an indictment against the leader of the Oath Keepers, Elmer Stewart Rhodes, and 10 associates, charging them with "seditious conspiracy.”

Mar. 8, 2022: Capitol rioter Guy Reffitt convicted at first January 6 trial.

June 3, 2022: Former White House and Trump advisor Peter K. Navarro indicted by a federal grand jury on two counts of contempt of Congress for not complying with a subpoena issued by the Jan. 6 Committee. He faces trial in November.

June 23, 2022: Cassidy Hutchinson, a former aide to Mark Meadows, delivered testimony against Trump. She supplied crucial information to the panel and identified House Republicans who sought pardons.

July 7, 2022: At this point in time, the Justice Department had arrested more than 850 Capitol riot suspects. More than 325 of them have pleaded guilty.

Aug. 7, 2022: Business Insider publishes an interview with Former Trump campaign chairman, Paul Manafort, in which he admits that he gave polling data to Russian/Ukrainian political consultant Kilimnik on August 2, 2016.

Aug. 8, 2022: The Federal Bureau of Investigation (FBI) executed a search warrant at Mar-a-Lago, the residence of former U.S. president Donald Trump, removing over 100 classified documents, some of which reportedly contained information about nuclear weapons.

Aug. 15, 2022: Fulton County District Attorney Fani Willis’s office asked a Georgia court to convene a special grand jury “for the purpose of investigating the facts and circumstances relating directly or indirectly to possible attempts to disrupt the lawful administration of the 2020 elections in the State of Georgia.”

Aug. 18, 2022: Allen Weisselberg, longtime chief financial officer for the Trump Organization, pleaded guilty to felony charges.

Sept. 2, 2022: The FBI revealed in a court filing that it recovered more than 11,000 government documents and photographs during the Aug. 8 search of Trump's estate, as well as 48 empty folders labeled as "classified.”

Sept. 21, 2022: New York Attorney General Letitia James filed a lawsuit against Donald Trump, the Trump Organization, senior management, and involved entities for engaging in years of financial fraud to obtain a host of economic benefits.

Sept. 29, 2022: US Supreme Court justice’s wife, Virginia “Ginni” Thomas, questioned by January 6 Committee.

Oct. 13, 2022: The U.S. Supreme declines to step into the legal fight over the classified documents seized during an FBI search of Trump’s Florida estate.

Oct. 21, 2022: Jan. 6 Select Committee issued subpoena to former President Trump to turn over documents and testify.

Oct. 21, 2022: U.S. District Judge Carl Nichols sentenced Steve Bannon, Trump's political advisor, to four months in prison for criminal contempt of Congress after failing to comply with a different committee subpoena.

Nov. 1, 2022: The Supreme Court declines to block subpoena of Senator and Trump ally Lindsey Graham in Georgia election probe. Sen. Graham sought to avoid testifying about allegations of interference in the 2020 presidential election.

Nov. 2, 2022: It is reported that top Trump adviser, Kash Patel, will receive limited protection from prosecution for his testimony on how and if the documents were “declassified.”

Nov. 3, 2022: A judge granted the New York attorney general’s request that former President Donald Trump’s business empire be overseen by an independent monitor.

Education is key to saving democracy. Now is a good time to pick up or share a copy of my first book, How to Read the Constitution--and Why.

Buy Here

The 2022 midterm elections will be held on Tuesday, Nov. 8, 2022. All 435 U.S. House seats and 34 of the 100 Senate seats are on the ballot. Do you have a confused, frustrated or disinterested non-voter in your life?

Share a copy of my book, What You Need to Know About Voting--and Why.