On Oct. 13, the House Jan. 6 Committee issued a subpoena to compel former President Donald Trump’s testimony on the Jan. 6 insurrection. After over 10,000 rioters stormed the Capital on Jan. 6, the U.S. House of Representatives commissioned an investigative committee to understand the facts, circumstances, and causes of the riot. After the committee was formed, it began interviewing a flurry of witnesses in an effort to gather evidence and craft a case against the former president. Yet, the committee declined to subpoena former President Trump’s testimony until the final days of the 117th Congress. Not only that, but congressional leaders and analysts doubt whether the subpoena will successfully compel the former president’s testimony. If the former president is unlikely to testify, why even subpoena him at all? Furthermore, without a star witness, what case does the committee hope to make?
To answer these questions, The Gate sat down with Carrie Cordero, a Robert M. Gates Senior Fellow and General Counsel at the Center for a New American Security. She is uniquely familiar with congressional testimony as she herself has testified on Homeland Security reform, surveillance law, and foreign influence on democratic institutions. Outside of her testimony and work as a Robert Gates fellow, Cordero serves as a CNN analyst as well as a member of the Homeland Security Advisory Council for the Secretary of Homeland Security. Her current research focuses on oversight of the intelligence community, transparency, surveillance, cybersecurity, and national security law.
In discussing what a hypothetical testimony from former president Trump would look like, Cordero explained that “Interviews or depositions that are video recorded give the committee the most flexibility in terms of how they wanted to use the testimony. A live witness carries with it some level of unpredictability. The committee might interview a person in advance of the live testimony just generally to have a sense of what they think the person is going to say. Though, either in terms of substance or in terms of the way they present, it doesn’t always turn out the same in live testimony.”
She continued, “For Robert Mueller’s testimony in front of the House Judiciary Committee after his investigation into Russian interference into the 2016 election, he was expected to be a very powerful witness. Instead he was very limited in terms of what he would say, his demeanor was muted. So public testimony always carries that risk of unpredictability.” On the topic of what the committee might ask the former president in these recorded hearings, Cordero commented, “They would have wanted to ask what the former president was in a position to provide to stop the violence on Jan. 6.”
Though, as mentioned previously, many congressional leaders and analysts believe that the former president will not testify. According to Cordero, this is because “[former president Trump] has already indicated that he doesn’t intend to comply with the subpoena.” Not only that, she argues that “the committee is going to run out of time to compel his testimony.” Here, Cordero references the former president’s lawsuit. Although filed in early November, courts only began hearing oral arguments for the case on Dec. 7. With the possibility of appeal on both sides, former president Trump appears to be able to ‘run out the clock’ on the Jan. 6 committee until a Republican majority, far more hostile to the Jan. 6 committee, takes control of the house and likely stymies much of the committee’s actions and goals.
Yet, despite the debate as to whether or not the former president can be compelled to testify, Cordero argues that “the committee knew it wasn’t going to get his testimony going in and it issued the subpoena more to establish the historical record that they asked, and he said no.” The former president’s refusal, which will be recorded in the congressional record, helps the committee to create its report. As Cordero explains “the committee is going to come out with a report and it's going to be expansive.” Therefore, this and other pieces of evidence will likely help the committee to craft its final conclusions of its nearly 1,000 interviews and copious amounts of evidence collected.
When asked about what might appear in that report, Cordero explained, “I think the report will be a little more even in terms of addressing issues pertaining to former President Trump specifically, as well talking more about the nature of domestic violent groups, as well as the lack of proper preparation by federal law enforcement to deal with radical groups on Jan. 6. Though, the committee has been pretty clear in their hearings that they think the former president is responsible. So I think the report will place a significant amount of responsibility on him personally as well.”
With the high probability of the committee placing responsibility on former president Trump for the Jan. 6 attack, Cordero explains that the committee might opt to use a legal tool called criminal referrals. Cordero explains, “[Criminal Referrals] are referrals to the Justice Department to look at whether or not prosecution is appropriate.” Since, “the congressional investigation is not a criminal investigation,” the committee can only recommend that the former president and others be charged with a crime rather than formally charge him themselves. In a testament to her knowledge, Cordero’s prediction came true after the interview as the committee announced that it would consider criminal referrals for former president Trump as well as four other accomplices.
Though, since the report may not come out until December or January, according to. Cordero, the general public may have to wait to see the committee’s full case. Yet, as Cordero’s insight demonstrates, it appears the Jan. 6 committee already has a case against the former president. Despite the legal weight of the subpoena, the committee never believed it was going to receive the former president’s testimony. Furthermore, with nearly 1,000 hours of recorded testimony, the committee appears ready to produce a report in which it places responsibility on the former president and possibly recommends to the Justice Department to indict him with a crime. Thus, the subpoena serves only to mark the committee’s yearlong work to build a case against the former president and claim that he is responsible for the Jan. 6 attack on the capital.
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