MARY LOUISE KELLY, HOST:
Donald Trump is not known for cooperating with investigations that target him or his businesses, so now that the congressional committee investigating the January 6 attack on the Capitol has voted unanimously to subpoena him, you have to wonder about the former president's next move. Democratic Representative Jamie Raskin of Maryland is on the committee, and he told NPR this morning that Trump doesn't really have a choice.
JAMIE RASKIN: Multiple presidents and seven former presidents have come to testify before Congress. His being a former president does not entitle him to skip out on the law.
KELLY: To parse what comes next, Aziz Huq joins me now. He is a professor of constitutional law at the University of Chicago. Professor Huq, welcome to ALL THINGS CONSIDERED.
AZIZ HUQ: Thanks, Mary Louise.
KELLY: OK. My central question here - I thought a subpoena meant you are compelled to testify, that this was not optional. But the emerging consensus seems to be that Trump will not cooperate. So how does this work? Can he ignore a subpoena?
HUQ: A subpoena is a lawful order to produce either documents or to testify, but a subpoena needs to be enforced. Congress has to take a couple of steps before this subpoena would be enforced, and it is likely that any of the paths that it took would require a good deal of time and would give the former president a number of opportunities to delay the process beyond the lifespan at least of the current Congress.
KELLY: OK. All right. Let me follow up on a couple things. First of all, what are the penalties here? If the former president does not produce documents, does not show up and testify, what happens?
HUQ: If former President Trump doesn't voluntarily cooperate, the committee has two basic options. The first is that it could refer the case to the Justice Department for prosecution. There is an 1857 statute that allows prosecutions for contempt of Congress. Indeed, Steve Bannon was just convicted under that statute.
KELLY: The president's former senior adviser. Go on.
HUQ: The second option is to proceed in court itself, using a civil suit to compel performance by the former president under the subpoena's terms. If the committee takes that second route, there's a possibility of civil contempt sanctions, which might be a fine and, in rare cases, imprisonment. If it take the criminal contempt route and the Justice Department were to agree to bring a case and a court were to find the former president in contempt, there could be a sentence of up to one year and a fine of up to a thousand dollars.
KELLY: So you're right. None of this sounds easy or straightforward. Does that mean if you are Donald Trump's lawyers, your strategy might boil down to trying to run down the clock? - because if Republicans win the House in November, as many expect, does the January 6 committee just disperse, and at least where Congress is concerned, the subpoena goes away?
HUQ: That's right. If the Republicans gain control of the House in November, the new majority would have power both to wind up the January 6 committee and also to withdraw the subpoena against the former president. In that case, the former president would not have any legal concern with respect to producing information for a committee that no longer existed.
KELLY: I was struck by something Liz Cheney, the Republican vice chair of the committee, talked about during the hearing yesterday, and it was accountability. She said without accountability, it all becomes normal, and it will recur. I mean, she was talking big picture about Donald Trump, but does it apply here as well to Congress' powers to investigate and hold anyone accountable, meaning if Congress issues a subpoena and it isn't complied with and there's no real penalty, that this becomes normal and it will recur?
HUQ: I think the big question presented today is whether the United States has a mechanism for addressing high-level criminality, acts by a very senior official within the government either that violate the law or that seriously break faith with the Constitution. The mechanism that is in the U.S. Constitution, which is impeachment, has not done the work that I think the framers expected. The problem today is that the Constitution has nothing else to say on the matter. Other countries which have more recently enacted constitutions create mechanisms for investigating high-level criminality and for dealing with it in a nonpartisan way that doesn't risk witch hunts but that ensures what Representative Cheney calls accountability. We do not have those mechanisms, and that is a profound gap in our constitutional order.
KELLY: That is professor of law at the University of Chicago Aziz Huq. Professor Huq, thanks.
HUQ: Thanks so much, Mary Louise. Transcript provided by NPR, Copyright NPR.
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