Trump subpoena signals the beginning of an epic battle

Open this photo in gallery:

Now begins a dramatic constitutional, legal and political struggle for the history books, and for the ages.

The formal issuing of a subpoena to Donald Trump on Friday is a perilous escalation in the battle between the former president and the congressional committee examining the Jan. 6 insurrection on Capitol Hill. It sets in motion a collision in multiple dimensions, each of which possesses massive implications not only for present circumstances but also for future administrations and for political figures yet unborn.

The subpoena sets the legislative branch of the United States government against the executive branch, Republicans against Democrats, those who believe the 2020 election was stolen against those who believe it was conducted properly, and American extremists against American moderates. It tests the constitutional balance of power and has the potential of creating fresh fissions in the country’s already fraught civic life.

At stake is more than Mr. Trump’s inclination not to recognize the legitimacy of a 21st-century committee on Capitol Hill that he has likened to the 17th-century persecution of residents of Salem, Mass., for witchcraft.

In the balance, too, are democratic values more under siege today than perhaps at any time in American history; the sinews of national unity more under stress than perhaps at any time since the Civil War; the “mystic chords of memory” that Abraham Lincoln cited in his first inaugural address that comprise the soundtrack of civic comity; and the narrative that will be transmitted to coming generations about the insurrection in the most cherished halls of American politics.

Jan. 6 committee seeks to preserve its work as time runs out

In this domestic-politics version of Grand Slam tennis, the committee examining the Jan. 6 riot has set out the first volley, in the form of the subpoena. Now, Mr. Trump must return the backspin serve in a way that he controls the political spin – and he has a deadline of six days after the midterm congressional elections.

He can, of course, ignore the subpoena and let the courts decide whether a former president – like his adviser Steve Bannon, who was sentenced to four months in prison for contempt of Congress Friday – should face further, potentially dangerous, legal action.

He can tread the well-travelled route of delay, delay, delay, hoping to put off the eventual resolution of this conflict until after the new Congress convenes in January, hoping that a newly empowered Republican House majority would simply abandon the procedure.

He can comply and then repeatedly claim the Fifth Amendment against self-incrimination, the way John Eastman, the lawyer who contributed theories to Mr. Trump’s election-denial claims, and Michael Flynn, Mr. Trump’s former national security adviser, have done.

Or he can make his testimony a trademark Trump reality show, leaving the country alternatively transfixed or horrified. The former president, who did not testify in either of his impeachment trials, has provided hints that he relishes the chance to do this, though many of his legal advisers are deeply skeptical of this political adventure, and in the coming days almost certainly will seek to persuade their client to take the route of delay.

“Trump is always boasting about his ratings and crowd size, and his testimony would certainly be ‘must-see tv,’ ” said Daniel Urman, who teaches constitutional law at Northeastern University. “The larger question is whether he would want to expose himself to legal jeopardy by testifying in front of serious and experienced questioners. It’s more likely that he will say, again, that the entire investigation is corrupt, so there’s no reason to comply.”

Over all, the committee has referred to the Justice Department four citations of congressional contempt.

For all the spectacle that this subpoena foreshadows, American presidents (and ex-presidents) have been summoned before Congress on multiple occasions. About a dozen U.S. chief executives, beginning with Thomas Jefferson at the outset of the 19th century, have faced some of the decisions Mr. Trump confronts, but none in the toxic environment of the factors at play here.

These include a president accused of fomenting revolution against the government he headed; a congressional committee whose members were hastened out of danger from a mob determined to wreak havoc in the Capitol building and wreck the country’s sense of historic national stability; and the possibility, if not the likelihood, that the accused president will try to reclaim the White House two years hence.

There is danger on all sides of this episode. Refusing to submit to a subpoena implicitly ignites a constitutional struggle. But Justice Department enforcement of a subpoena and the threat of legal action against a member or former member of the executive department of the government is rare and, in this case, could set a precedent that Attorney-General Merrick Garland, who already is investigating Mr. Trump on other matters, may be wary of establishing.

“Although the courts have reaffirmed Congress’s constitutional authority to issue and enforce subpoenas, efforts to punish an executive-branch official for non-compliance with a subpoena through criminal contempt will likely prove unavailing in many, if not most, circumstances,” according to a 2017 report by the Congressional Research Service.

At the same time, congressional committees possess the option of going to the federal district court and arguing that a president or former president is legally compelled to comply with a subpoena from the legislative branch.

Continued resistance would shift the legal vulnerability from the fairly vague “contempt of Congress” to the far more perilous “contempt of court” – a politically and legally dangerous position for a political figure who has sworn to uphold the law.