Support The Bulwark and subscribe today.
  Join Now

Trump Shouldn’t Testify Before the Jan. 6th Committee—But He Might

If his lawyers had their druthers, Trump would delay until the midterms. But can he turn down the TV ratings of a live hearing?
October 19, 2022
Trump Shouldn’t Testify Before the Jan. 6th Committee—But He Might
Donald Trump arrives to speak to supporters from The Ellipse near the White House on January 6, 2021, in Washington, DC. (Photo by Brendan Smialowski / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

Last Thursday, the final (maybe) hearing of the House January 6th Committee ended on a dramatic note—though not a particularly suspenseful one—when the committee voted on live TV to issue a subpoena to Donald Trump. At the time, this epic, who’s-your-daddy move didn’t get the respect it deserves because most pundits think it will come to nothing. I’m not so sure.

Of course, thanks to Nixon and Clinton, it’s now well established that even sitting presidents, to say nothing of ex-presidents, are subject to subpoena in both criminal and civil court cases. But it wasn’t until 1953, when former President Harry Truman refused to comply with a subpoena from the House Un-American Activities Committee, that presidents tried to resist congressional subpoenas on separation-of-powers grounds. (The House declined to enforce HUAC’s subpoena and the matter was dropped.)

Prior to that, it was simply assumed that ex-presidents were no more immune from subpoena than anyone else. Several provided evidence both in court and before Congress. In one noteworthy example, the House was investigating claims of misuse of public funds involving Daniel Webster and dating from his time as secretary of state. President James K. Polk refused to provide the requested information on the grounds that it would be improper for a sitting president to reveal the confidences of a prior president. The House responded by forming two select committees and issuing subpoenas to former Presidents John Quincy Adams and John Tyler, who both provided testimony in response. After a thorough investigation, the House concluded that even though the funds in question had been dispersed confidentially, they had not been misused. Webster emerged with his reputation intact.

Perhaps as a result of that investigation, ex-presidents have often voluntarily appeared before Congress. Gerald Ford, William Howard Taft, Woodrow Wilson, and Teddy Roosevelt all did so. Even Truman put his separation-of-powers concerns aside and voluntarily testified before the Senate Foreign Relations Committee. So there is certainly nothing outrageous about the idea of Trump coming in and giving evidence about the events of January 6th. In fact, it would be part of an honored tradition.

There are three possible outcomes to this confrontation. If Trump is guided by legal advice, he will challenge the subpoena in court and run out the clock. If control of the House changes hands, the subpoena will be withdrawn and he’ll be off the hook.

If he is guided by his own ego, he will show up and testify on live TV. Think of the ratings!

If he is a damn fool, he will simply ignore the subpoena and rely on the Justice Department’s traditional claim that presidents have absolute immunity when it comes to forced congressional testimony. While it would be an immensely stupid thing to do, treating the Jan. 6th Committee and its subpoena as illegitimate is also the most “alpha” thing Trump could do. It also has the advantage of being the easiest thing Trump could do since it requires him to do nothing at all.

If Trump does ignore the subpoena, the House will immediately refer him to the Justice Department for a criminal contempt prosecution and both Merrick Garland and the Biden White House will find themselves in it up to their necks. When the committee issued this subpoena, it wasn’t just throwing down with Trump—it was throwing down with the presidency itself.

Since Truman, it has been an article of faith at the Office of Legal Counsel, the office in the Justice Department that sets legal policy for the executive branch, that Congress has no power to subpoena a president or even a president’s advisors. There’s no actual case law that says this. In fact, what case law there is says exactly the opposite. But that hasn’t stopped the rule from gaining the power of presumptive force. To quote Miracle on 34th Street, “Faith is believing in things when common sense tells you not to.”

But if the Biden administration is faced with a demand from the House to prosecute Trump for ignoring the subpoena, that faith is going to be tested. It is both legally and politically impossible for the Biden administration to endorse a Trump refusal to explain his actions on Jan. 6th. After all the evidence the committee has already produced, the only possible excuse for not pursuing a contempt action against Trump would be if he were already being charged with seditious conspiracy and insurrection.

So if Trump does simply ignore the subpoena, he will most likely face contempt charges in criminal court. Unlike the subpoena itself, criminal charges for violating it won’t just disappear if Republicans control the House. Of course, if Trump is facing federal charges for stealing classified material and destroying government records along with state election-tampering charges, this case will be the least of his problems.

If it were anybody else, there would be no doubt that Trump would challenge the subpoena in court. But it’s Trump, so all bets are off—especially where his ego is at stake. Trump has already sent a fourteen-page letter—which, having read it, I can absolutely guarantee was not the result of legal advice—directly to the committee. It starts off with “THE PRESIDENTIAL ELECTION OF 2020 WAS RIGGED AND STOLEN!” and goes downhill from there. If Trump really wants to get his side of the story out, what better format than testifying before the committee? In the current political climate, this confrontation could well turn out to be the most-watched television event in American history.

There’s even a sort of political logic to it. Why shouldn’t Trump come forward and tell America what happened on that day? If he thinks the committee is twisting the record, now is his chance to set it straight. Not only does America have a right to hear his version of events, he should want to tell his side of the story. Or is he really that afraid of Liz Cheney?

By trying to dodge the subpoena, Trump would look weak, something that doesn’t sit well either with MAGA world or Trump himself. It would only be a matter of time before the Lincoln Project released a new ad with the sound of chickens clucking and aired it on Fox and Friends. By contrast, nothing would do more to strengthen Trump’s 2024 chances than staring down the committee just like Hillary Clinton did when she spent eleven hours testifying about Benghazi. And Trump would only have to testify for two hours, tops.

Odds are that Trump will file a challenge to the committee’s subpoena in court that will include the usual word salad of grievances that Trump’s lawyers always throw in these days to keep their client happy. But if we’ve all learned one thing over the past several years, it’s that the other two possibilities, that Trump will do something either colossally egotistical or colossally stupid, are always in the running.

Chris Truax

Chris Truax is an appellate lawyer in San Diego and the CEO of, the first system designed to deter foreign interference in American social media. He is a member of the Guardrails of Democracy Project.