Trump's lawsuit against Jan. 6 committee is a sideshow — they've already nailed him

Donald Trump was never going to testify — not anywhere, not ever. His weaselly delay tactics make that clear

Published November 15, 2022 5:45AM (EST)

Former U.S. President Donald Trump | Members of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol (Photo illustration by Salon/Getty Images)
Former U.S. President Donald Trump | Members of the Select Committee to Investigate the January 6th Attack on the U.S. Capitol (Photo illustration by Salon/Getty Images)

On Nov. 11, to absolutely no one's surprise, Donald Trump sued the House Jan. 6 select committee to avoid having to testify or provide documents in response to its subpoena. That was just the latest chapter in Trump's long history of deploying lawsuits to stall — this time as the clock runs out on the current Democratic majority in Congress and its Jan. 6 committee.

Little matter: The committee has already won the war.  

From the outset, the committee chaired by Rep. Bennie Thompson of Mississippi — with the starring role played by Rep. Liz Cheney of Wyoming — had a threefold mission. First, to uncover facts and issues that would help the American people understand what led to the Jan. 6 insurrection and who was responsible, in order to shape a response through the democratic process. Second, to frame legislative proposals aimed at preventing a recurrence of that travesty.  

As part of the legislative branch, the committee was never a route to initiate a criminal case against Donald Trump. But to the extent it established facts that could aid a potential prosecution, the committee's third and quite collateral function was to make the evidence available to prosecutors for their independent consideration. 

Missions accomplished, on all counts

The committee's subpoena of Oct. 26 invited Trump to tell his story under oath. The committee surely knew the former president would decline the invitation. After all, he took the Fifth Amendment 450 times on Aug. 10 when deposed in New York Attorney General Letitia James' civil case against the Trump Organization. 

This is not a man who has a story of innocence to tell, at least not under oath. So the committee's latest win is to have that fact confirmed yet again by Trump's Nov. 11 court filing, where the obvious aim is to avoid testifying until the committee's clock runs out.

Whether Trump was subpoenaed in May 2021 or October 2022, he was never going to give any substantive testimony. If he had been subpoenaed last year, he would have delayed, by fair means or foul. If actually required to testify, he would have taken the Fifth. 

The committee understood from the start that it made little sense to waste time litigating with Trump about a subpoena that would eventually yield nothing. It was far better for the panel to spend its limited resources and ever-shortening lifespan building the case of Trump's guilt to present to the American people. There would be time enough at the end to subpoena him and show America that under no circumstances would he testify under oath.

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It is important to focus on the committee's central triumph, not this last minor chapter. For weeks this summer, its hearings riveted the country and the media. The public was offered a coherent narrative laid out in hearing after hearing. It proved Trump's central role in inciting the Jan. 6 violence, his serial attempts to overturn the Constitution, first bloodlessly and then through violence, and his admissions to aides that he had lost the election he falsely claimed to have won. Brazenly, it was that false claim that he used to inflame the mob on the morning of Jan. 6.

The committee's powerful case became an important backdrop to last week's surprising midterms. Testimony before the committee demonstrated to any fair-minded person that Donald Trump was the central actor in the conspiracy to end our democracy. That was on the ballot and so was he. Democracy won. Trump lost.

The legal arguments in Trump's Nov. 11 lawsuit to avoid testifying are feeble. 

Trump's lawsuit against the Jan. 6 committee is a rehash of already-rejected legal claims, and filing it in Florida is the same nonsensical gamesmanship that worked for him in September.

The fact that Trump filed the suit in Florida reflects the same legal gamesmanship that worked for him in September. There Judge Aileen Cannon, whom Trump appointed, ended up handling his suit over the classified documents he improperly held at Mar-a-Lago after the end of his term. Even the conservative 11th Circuit Court of Appeals swiftly reversed Cannon's most egregious rulings.

No lawyer reading Trump's latest court filing could miss the rehash of already rejected legal claims about his purported executive privilege or the committee's alleged lack of legal authority. 

Trump's claim based on the separation of powers is particularly hypocritical, coming from a former president who sought, according to compelling evidence, to corrupt and undermine the legislative branch's constitutionally assigned authority to certify the winner of a presidential election. 

The stark fact that Trump is a former president dilutes his claim. The committee's letter accompanying the subpoena tellingly quoted President Theodore Roosevelt during his own congressional testimony after leaving office: "An ex-President is merely a citizen of the United States, like any other citizen, and it is his plain duty to try to help this committee or respond to its invitation."

That is simply common sense. As is the bottom line: If Trump had something to say that might be helpful to his own cause, he wouldn't be ducking his duty to come forward. He has already lost with the committee, just as he lost last Tuesday with American voters.

By Frederick Baron

Frederick Baron is a former associate deputy attorney general and a former counsel to the Senate Select Committee on Intelligence.

MORE FROM Frederick Baron

By Dennis Aftergut

Dennis Aftergut, a former federal prosecutor, is currently of counsel to Lawyers Defending American Democracy.

MORE FROM Dennis Aftergut

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Analysis Donald Trump Elections Jan. 6 Committee Mar-a-lago Subpoena