The Jan. 6 select committee voted unanimously Thursday to subpoena Donald Trump, a remarkable bid to tie up one of its last remaining threads that’s unlikely to successfully compel the former president’s testimony.
“It is our obligation to seek Donald Trump’s testimony,” the panel’s chair, Rep. Bennie Thompson (D-Miss.), said before the vote. “There’s precedent in American history for Congress to compel the testimony of a president.”
Committee vice chair Rep. Liz Cheney (R-Wyo.) described securing the testimony of “Jan. 6’s central player” as “a key task” that remains unfinished. Yet even though members of Trump’s closest inner circle, like his daughter Ivanka and son-in-law Jared Kushner, have testified to the Jan. 6 panel, it’s far from clear that the former president — who has routinely denounced their work — would comply with a summons.
And there’s plenty of factors cutting against the panel’s ability to obtain Trump’s cooperation. There is little precedent for such a move against a former president, which would raise thorny separation of powers issues that have rarely, if ever, been litigated.
Former President Harry Truman resisted a subpoena from the Cold War-era House Un-American Activities Committee and refused to comply, saying it would set a dangerous precedent, a decision that the Justice Department has since cited in its own internal opinions. And though the issues Trump would be subpoenaed over may pass legal muster, the length of time it would take to litigate the issue will all but certainly carry on beyond the select committee’s tenure, which ends in January.
Before taking a remarkable public step to subpoena Trump, the Jan. 6 committee revealed Thursday that Trump sent military leaders into a panic by secretly ordering all U.S. troops withdrawn from Afghanistan and Somalia days after losing reelection.
The select panel showed testimony from Gen. Mark Milley, chairman of the Joint Chiefs of Staff, describing Trump’s withdrawal move as “potentially dangerous” but said Trump suggested leaving the problem to “the next guy.” While the order was never implemented, Trump’s intent was to complete the withdrawal before Inauguration Day — and panel member Rep. Adam Kinzinger (R-Ill.) argued that it was evidence that he knew “his term would shortly end.”
The troop withdrawal push was among new details released by the Jan. 6 committee in what’s likely to be its final televised effort to make the case that Trump is singularly responsible for the violence and chaos of the Capitol riot, as well as the erosion of democratic institutions. Trump acted, panel members say, while privately acknowledging he had lost reelection and preparing to leave office.
And despite his private admissions, Trump publicly continued to sow doubt about the election results, part of a plan the select committee said he began implementing days before the election.
Trump’s election night speech falsely declaring victory was all part of a “premeditated plan,” panel member Rep. Zoe Lofgren (D-Calif.) said Thursday. She cited comments from late October and early November 2020 by key Trump allies like Roger Stone, Steve Bannon and Judicial Watch head Tom Fitton, who delivered a draft statement for the then-president to claim victory while millions of votes had yet to be counted.
“We had an election today — and I won,” Fitton’s statement read, per a copy delivered to Trump aides in an Oct. 31, 2020, email released by the panel. Fitton resent the memo to the White House on Nov. 3, 2020, and said he had talked to Trump about it.
In addition to emphasizing aspects of the plan that began before Election Day, the panel intends to argue that Trump’s bid to subvert the 2020 election didn’t end on Jan. 6, 2021, or even when he left office. Since then, he’s gone to even further lengths to delegitimize his defeat.
That ongoing effort is a centerpiece of the select committee’s next — and perhaps final — televised pitch to Americans. In her opening statement Thursday, Cheney cited recent comments by U.S. District Court Judge Amy Berman Jackson in which she upbraided elected Republicans for continuing to indulge “one man, who knows full well that he lost, instead of the Constitution he was trying to subvert.”
The select committee’s closing pitch to Americans is drawing on all aspects of its more than yearlong probe. Investigators are featuring evidence that Trump’s allies were pushing him to declare victory on Election Day 2020 even before the votes were counted, that Trump was in a unique position to know election fraud claims were false, and that Trump was warned of the unfolding violence at the Capitol before he tweeted an inflammatory attack on then-Vice President Mike Pence.
Since leaving office, Trump has used his megaphone to promise pardons to many of those jailed for storming the Capitol on Jan. 6 while leaning on state legislators and members of Congress to embrace impossible proposals to unravel the 2020 election — including an explicit call to be reinstated as president.
Thursday’s hearing is also functioning as a segue of sorts to the criminal case that federal prosecutors are piecing together, bolstered by the recent issuance of dozens of grand jury subpoenas and court-authorized searches of some of Trump’s top allies.
The committee has long emphasized its distinct mission from prosecutors — to inform the public and develop legislative recommendations — but has used its platform to press DOJ to pursue potential crimes among Trump’s inner circle. Cheney said the panel could still make criminal referrals to the department but emphasized that its “role is not to make decisions regarding prosecution.”
Before Thompson hinted at a vote on next steps without naming Trump — the panel’s plans to subpoena him were first reported by NBC — investigators indicated they’re still likely to produce a final document in December summing up their conclusions and are also weighing the release of their hundreds of witness transcripts that federal prosecutors have indicated interest in.
A committee spokesperson did not immediately respond to a request for comment on its plans to subpoena Trump.
Thursday’s hearing also featured some of the select panel’s evidence obtained after its summer hearings, like interviews with Trump Cabinet members like former secretary of State Mike Pompeo. It also is presenting documentary footage of longtime Trump ally Roger Stone, who was followed around by a camera crew in the weeks leading up to Jan. 6.
The Stone footage, provided by a Danish film crew and obtained by CNN, includes audio of Stone — one day before Election Day — telling an associate, “Fuck the voting, let’s get right to the violence,” while laughing.
Thompson has also described a significant trove of documents and messages recently turned over by the Secret Service. Investigators have viewed the agency with skepticism after learning that thousands of messages sent among senior officials surrounding the date of the attack were erased in what the agency described as a tech upgrade.
The committee is likely to flick at some of Stone’s links to pro-Trump extremist groups, like the Oath Keepers and Proud Boys. Investigators have eyed the voluminous connections between Trump and those who facilitated nearly every aspect of the former president’s push to subvert the election, even though there’s been little evidence of Stone’s direct involvement in those efforts.
Yet several figures in Stone’s orbit were among the most significant players in the events of Jan. 6, including Proud Boys national chair Enrique Tarrio and Oath Keepers founder Stewart Rhodes.
Stone also hired several members of the Oath Keepers to perform security for him on Jan. 5 and 6, 2021 — among them, Kelly Meggs, who is charged alongside Rhodes with seditious conspiracy for their involvement in the breach of the Capitol. Another Oath Keeper who guarded Stone, Joshua James, has already pleaded guilty to seditious conspiracy.
The hearing will play out alongside the Justice Department’s most significant criminal trial yet stemming from the Jan. 6 attack. Just across the street from the Capitol, five leaders of the Oath Keepers, including Rhodes, are beginning their trial on seditious conspiracy charges.