Former President Donald Trump has reportedly just hired a Republican law firm to “engage with” the House Jan. 6 committee. “Engagement” could mean negotiation, litigation, stall … or, most likely, “all of the above,” emphasis on “stall.”
Mark J. Rozell, George Mason University expert on presidential power, hinted as much on Saturday when he told the New York Times that Trump could “put forward various creative legal arguments and ultimately delay the process until it doesn’t matter anymore.”
When it comes to subjecting himself to legal process, delay has been Trump’s long-time friend, especially when he has no legal ground for refusing to comply. He knows that the committee’s mandate expires with this Congress in early January.
For the committee, the immediate question is what to do with Trump’s offer to testify if his testimony is televised live. Trump made the offer on Oct. 14, after the committee voted to subpoena him. ABC news has reported that the nine members of the committee are divided on whether to accept Trump’s proposal.
Let’s parse what the president wants — or rather, what he doesn’t want: a private deposition that allows the committee to determine whether he intends to answer any questions or just grab free television time for his past-election denying and his future run for president.
The divided views are easy to understand. On one hand, it is hard to pass up an opportunity by committee members who are steeped in the evidence of the Jan. 6 insurrection — and what certainly appears to be an attempted coup that preceded it — to question the central character in the apparent plot to overthrow the Constitution.
Can you imagine the cross-examination by Adam Schiff (D-Calif.), the experienced former federal prosecutor? The questions would be so pointed that it almost wouldn’t matter if Trump refused to answer.
Or envision “Cheney’s last stand” for the Republic, as the fierce Republican Congresswoman faced off with Trump. If Liz Cheney (R-Wyo.) is truly contemplating a 2024 presidential run herself, she must be salivating at the prospect.
Or contemplate constitutionalist Jamie Raskin asking Trump whether he believes that the drafters of the Constitution, who were rebelling against rule by one man who sat on a throne, would have given some other man, a future vice president, the power to overturn the national electoral count? Or why Trump didn’t call in the national guard to quell the insurrection?
Sugar plum fairies dancing in a sleeping child’s dream are no more enticing than the prospects of those skillful elected officials confronting Donald Trump on live television.
And yet…
There are reasons that some members of the committee, who may well include those named above, would hesitate to accept Trump’s offer. To date, the committee has resisted anyone who has attempted to dictate terms to it.
First and foremost came Kevin McCarthy’s (R-Calif.) misguided attempt in July 2020 to insist upon naming members to the committee such as Jim Jordan (R-Ohio), who even at that stage was clearly neck-deep in involvement with Trump. Speaker Nancy Pelosi (D-Calif.) and the committee rejected that attempt to sabotage the investigation from the start.
Then came Oath Keeper leader Stewart Rhodes, currently on trial in D.C. for seditious conspiracy, making the same demand that Trump has made: ‘I’ll testify, but only if it’s broadcast live.’
Why reject that offer rather than find out what can be found out?
First, there’s the principle of the thing: Subpoenas do not contemplate qualified appearances. Prosecutors do not accept a witness’s limitations on questioning before she or he will appear in front of a grand jury.
Is Trump so important a figure that the committee would make an exception for him? He’d like to think so.
And then there’s the slippery slope when an investigating body starts accepting conditions about a witness appearing.
Just think for a moment about what might happen if the committee takes Trump up on his offer without letting him know that it will accept no more conditions. Is there a chance in the world that he would hesitate to move the goalposts?
“Ok, but I need 45 uninterrupted minutes before any questioning begins.”
“I am the president, so only Chairman Bennie Thompson (D-Miss.) may question me.”
“I will answer only three questions.”
And so on.
That’s why, if the committee is inclined at all to call Trump’s bluff, it must say, “Ok, you can testify in public, but don’t bother asking for anything more because the answer is ‘No.’ And we will give you x minutes for an opening statement and no more, after which the questions will begin.”
If Trump were to agree to testify live without further preconditions other than the committee’s own, then it should welcome his agreement and say, “Bring it on.” Six in 10 Americans think Trump should testify, according to an Oct. 19 Monmouth poll.
In all likelihood, the committee laying down that red line would expose Trump’s bluff for what it is: a charade meant to claim the talking point prize: “I offered, and they refused.”
Of course, Trump does not want or mean to give any substantive testimony: Witness his nearly 450 invocations of the Fifth Amendment when New York Attorney General Letitia James deposed him in August. The committee should dare him to abide by his offer so long as he sticks to it and their simple terms.
Laurence H. Tribe is the Carl M. Loeb University Professor emeritus and a professor of constitutional law emeritus at Harvard Law School.
Dennis Aftergut is a former federal prosecutor, currently of counsel to Lawyers Defending American Democracy.