Does Donald Trump have to comply with the Jan. 6 committee subpoena?

The House committee investigating the Jan. 6, 2021, attack in the U.S. Capitol voted Thursday to issue a subpoena to former President Donald Trump to testify about the events surrounding the attack.

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And while Trump on Friday morning responded to the committee’s action, he did not say he would comply with the subpoena.

Does the former president have to appear before the House committee? Here is what we know about Trump’s options and how the House committee could respond.

What is a subpoena?

A subpoena is an order to produce something – usually testimony or records.

Who can issue a subpoena?

Subpoenas are issued by courts and government agencies.

What is a congressional subpoena?

A congressional subpoena is a subpoena issued by a committee in Congress as part of an investigation or oversight of an agency.

Where is congressional subpoena power spelled out in the Constitution?

The powers to subpoena were established not by the Constitution but by U.S. Supreme Court rulings.

Three rulings – Watkins v. United States (1957), Wilkinson v. United States (1961) and Eastland v. United States Servicemen’s Fund (1975) – established Congress’ right to issue subpoenas and what they must do to issue one.

Is it a crime to defy a congressional subpoena?

Yes, it is.

The criminal contempt of Congress statute makes the failure to comply with a congressional subpoena a crime.

The statute, 2 U.S.C. § 192, says that any person who “willfully” fails to comply with a properly issued committee subpoena for testimony or documents is guilty of a misdemeanor, punishable by a substantial fine and imprisonment for up to one year.

What happens if a person chooses to ignore the subpoena?

According to the Congressional Research Service, “Congress currently relies on two formal legal mechanisms to enforce subpoenas: criminal contempt of Congress and civil enforcement of subpoenas in the federal courts.”

Under criminal contempt, if a person refuses to appear, a process is triggered that can end with the person being referred to the Department of Justice for criminal prosecution.

Under civil enforcement, Congress can choose to enforce a subpoena through a civil suit in the federal courts.

Congress can also use something called “inherent contempt” power. This means that the sergeant-at-arms would physically detain a subpoena violator.

However, this option has not been used in nearly 100 years.

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