WASHINGTON — If former President Donald Trump decides to fight the subpoena issued to him Friday by the House committee investigating his attempts to overturn the 2020 election, his lawyers are likely to muster a battery of constitutional and procedural arguments for why a court should allow him not to testify.
In the most basic sense, any legal arguments seeking to get Trump off the hook would merely need to be weighty enough to produce 2 1/2 months of litigation. If Republicans pick up enough seats in the midterm elections to take over the House in January, as polls suggest is likely, they are virtually certain to shut down the Jan. 6 committee, a move that would invalidate the subpoena.
The issues raised by the extraordinary subpoena, which the panel announced at a hearing last week, are too complex to be definitively resolved before a potential change of power in the House, said Mark Rozell, a George Mason University professor and author of “Executive Privilege: Presidential Power, Secrecy and Accountability.”
“We are in a constitutional gray area here where there is no clear guidance as to exactly what should happen,” Rozell said. “That gives the former president some leeway to put forward various creative legal arguments and ultimately delay the process until it doesn’t matter anymore.”
Several former presidents have voluntarily testified before Congress, including Theodore Roosevelt, William Howard Taft, Herbert Hoover, Harry Truman and Gerald Ford. But there is no Supreme Court precedent that says whether Congress has the power to compel former presidents to testify against their will about their actions in office.
There are two historical precedents, but neither generated court rulings. In 1846, the House subpoenaed two former presidents, John Quincy Adams and John Tyler, for an investigation into allegations of misspending by a secretary of