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Enforcing Congressional Subpoenas

How Will Congress Enforce the Jan 6 Subpoenas

Page Pate is recognized as a constitutional law attorney and legal analyst, and he is frequently contacted by the media to discuss important legal and political issues that appear in the news. In this case, CNN interviewed Page regarding the Congressional investigation into the January 6th Capitol riots and the subpoenas that are being served upon associates of former President Donald Trump.

Former President Trump has indicated that he will assert executive privilege regarding Congress’ recent subpoena for documents; however, President Joe Biden has advised that he will not assert executive privilege concerning the same request for documents. Page is asked who has the final say on the matter, and he says that he thinks “that’s gonna be a question that we’re gonna find the answer out in real time. It is, I think, relatively clear based on an old Supreme Court decision that a former president does have some right to claim executive privilege. It does not just belong to the current person who’s in that office. But I do believe in a situation like this where you have a disagreement, the incumbent president says, “I don’t think executive privilege applies,” the former president says, “I think it does,” I think in that case you have to give the benefit of the doubt to the incumbent president because executive privilege protects the Office of the President, not the individual who may be holding it.”

Page is also asked if former President Trump can stop witnesses from speaking to investigators. He explains that former President Trump cannot stop them from speaking and tells CNN that “if the witness wants to speak to the investigator regardless. Trump can say, “Look, I wanna assert executive privilege here. I don’t want you to talk to the investigator.” But ultimately, the individual who’s been subpoenaed has to make that decision for themselves. And what I think will happen here if Congress is going to be aggressive about it, if they mean what they say when they issue these subpoenas is they will refer these individuals for criminal prosecution to the Department of Justice. And that’s, I think, the first time we’ll actually see these witnesses facing real serious consequences for refusing to testify.”

Page further explains that the issue could go to court, but that there is “a way to do it faster,” and says “See, in the past, especially when Trump was in the White House and the DOJ more or less answered to him, what Congress would do when they were trying to enforce the subpoena is first go to court, try to get a court order and then require the person to appear, and then if they didn’t appear, try to get the court to hold them in contempt. There’s a way to bypass that. Congress can go directly to the Department of Justice and say, “Look, this person was lawfully served with a subpoena. They either didn’t show up or they showed up and didn’t answer questions so you need to consider criminal prosecution.” Now those witnesses will have a defense. They can say, “Look, we didn’t have to testify. Executive privilege applies.” But that would be played out in court. And I think that would be a lot faster and a way to really move the investigation forward other than taking that longer step through the court process.”

CNN asks Page what could be done to protect future elections, so that something similar doesn’t happen. He says that he thinks “that’s really the ultimate question here. What can we do to make sure this doesn’t happen again? It’s not gonna be issuing another report. That’s not gonna ensure it doesn’t happen again. If you look to what people do in criminal cases, what prosecutors do, we look for deterrents. What is gonna deter someone from acting on behalf of a president who wants to stay in office when those actions are unlawful? It’s prosecution. So, I think if Congress goes ahead and is very aggressive, as they’ve said they’re going to be in enforcing these subpoenas, that’s a good first step. Let’s send the message that we mean what we say, we’re taking this seriously and people are gonna be held accountable.”

TRANSCRIPT:

Pamela: Well, the fight for answers suddenly gains momentum after the Trump-inspired attempted coup of January 6. These are all the former president’s men who now face subpoenas. Two of them are, “Engaging with the panel.” One, Dan Scavino, finally accepted his subpoena Friday after the committee spent days looking for him. They finally sent their process server to Mar-a-Lago with Scavino telling someone there to accept it while he was at home in New York. But Steve Bannon isn’t anywhere close to talking. He is citing Trump’s claim of executive privilege as an excuse to keep silent.

Now Trump’s spokesman said this week that, “Executive privilege will be defended, not just on behalf of President Trump and his administration but also on behalf of the Office of the President of the United States and the future of our nation.” So, there’s just one problem with that. The office of the current president responded Friday by saying, “It won’t assert executive privilege to block the committee’s request for documents.” Did you take all that in? That’s a lot. So, let’s try to understand this a little more with Page Pate. He is a constitutional law attorney. Thanks for being here. All right, Page. So, help us understand this. You have the former president trying to invoke executive privilege or insinuating that he believes it’s covered here. You have the current president saying that he won’t assert executive privilege for this first group of documents. Who has the most say here? Who has the upper hand on this fight?

Page: Well, Pamela, I think that’s gonna be a question that we’re gonna find the answer out in real time. It is, I think, relatively clear based on an old Supreme Court decision that a former president does have some right to claim executive privilege. It does not just belong to the current person who’s in that office. But I do believe in a situation like this where you have a disagreement, the incumbent president says, “I don’t think executive privilege applies,” the former president says, “I think it does,” I think in that case you have to give the benefit of the doubt to the incumbent president because executive privilege protects the Office of the President, not the individual who may be holding it.

Pamela: So, can Trump stop witnesses from speaking to investigators?

Page: Not if the witness wants to speak to the investigator regardless. Trump can say, “Look, I wanna assert executive privilege here. I don’t want you to talk to the investigator.” But ultimately, the individual who’s been subpoenaed has to make that decision for themselves. And what I think will happen here if Congress is going to be aggressive about it, if they mean what they say when they issue these subpoenas is they will refer these individuals for criminal prosecution to the Department of Justice. And that’s, I think, the first time we’ll actually see these witnesses facing real serious consequences for refusing to testify.

Pamela: But that is a process. If they do that, that could take a long time. I mean, Democrats could run out the clock, right? I mean, if this goes to court, this could take a long time.

Page: Well, it could but there’s a way to do it faster. See, in the past, especially when Trump was in the White House and the DOJ more or less answered to him, what Congress would do when they were trying to enforce the subpoena is first go to court, try to get a court order and then require the person to appear, and then if they didn’t appear, try to get the court to hold them in contempt. There’s a way to bypass that. Congress can go directly to the Department of Justice and say, “Look, this person was lawfully served with a subpoena. They either didn’t show up or they showed up and didn’t answer questions so you need to consider criminal prosecution.” Now those witnesses will have a defense. They can say, “Look, we didn’t have to testify. Executive privilege applies.” But that would be played out in court. And I think that would be a lot faster and a way to really move the investigation forward other than taking that longer step through the court process.

Pamela: So hypothetically, these aides could wind up sitting in jail. If they refuse to testify, if the committee goes that route and if they’re found guilty, that could be the outcome here.

Page: That’s right. It is a misdemeanor offense so we’re not talking about years in jail but it does carry at least 30 days in jail. Now again, there’s still gonna be a criminal process. Just because they refer it to DOJ doesn’t mean the Department of Justice is automatically gonna take these people to trial. They have to go through the indictment process. I’m sure the witnesses will raise defenses. But that process in a criminal case is usually much faster than in a civil case when you’re trying to get a court to uphold a subpoena issued by a congressional committee like this.

Pamela: So, we have the January 6 select committee. We have this damning report from the Senate Judiciary Committee. It was a preliminary report. Among other findings, it says Trump asked the DOJ to undermine the election result nine times. What can be done to prevent a future attempt to overturn an election? What could be done legally to prevent those efforts in the future, to protect future elections?

Page: Well, Pamela, I think that’s really the ultimate question here. What can we do to make sure this doesn’t happen again? It’s not gonna be issuing another report. That’s not gonna ensure it doesn’t happen again. If you look to what people do in criminal cases, what prosecutors do, we look for deterrents. What is gonna deter someone from acting on behalf of a president who wants to stay in office when those actions are unlawful? It’s prosecution. So, I think if Congress goes ahead and is very aggressive, as they’ve said they’re going to be in enforcing these subpoenas, that’s a good first step. Let’s send the message that we mean what we say, we’re taking this seriously and people are gonna be held accountable.

Pamela: So, I see your point but do you think that the committee waited too long to get going, given the midterms, barely a year away and the possibility that this whole probe gets shut down depending on how the midterms go? What do you think?

Page: Well, I mean, that’s possible. I know that they have gathered some documents. They’ve talked to some individuals. They’re gathering some evidence. The process is by its nature a slow, deliberative process. There’s really no way around that. But I think if Trump and the people who are listening to him are really gonna force the issue, we could see some of these legal questions playing out in court very soon well before the midterm elections.

Pamela: All right. Page Pate, great to have you on. Thank you so much.

Page: Thank you, Pamela.