The House Select Committee on January 6 ended what may be its final public hearing today with what is almost certainly a futile gesture: The members voted unanimously to subpoena former President Donald Trump for testimony and documents about his effort to subvert the 2020 presidential election and his incitement of a mob that attacked the Capitol.
The odds that they will get their way are effectively zero. Trump will surely fight the subpoena, just as many of his associates have resisted the committee’s demands. One of them, Steve Bannon, was even convicted for contempt of Congress. Whether or not the committee could compel Trump’s testimony in the abstract—and the legal and constitutional questions are complicated—doing so requires time that the committee likely doesn’t have. If Republicans retake the House in the midterm elections, the liquidation (or appropriation) of the committee will be one of their first orders of business.
But what is likely to happen, and what is legally enforceable, are not the same as what is right. The American people deserve to hear from Trump.
Much of today’s hearing was a summary of what the panel has laid out in previous sessions, arranged to make the case that Trump had a premeditated plan to contest the election and declare victory, no matter the results; that he knew he had lost and claimed victory anyway; that he lied in claiming election fraud; that he had a role in putting together the violent mob that assembled in Washington on January 6; and that he encouraged his supporters to march to the Capitol in full awareness that they were armed and would do harm.
Whether or not it would be sufficient to convict Trump in a court of law, where prosecutors would have to prove his mental state, the case the committee put together was persuasive by any commonsense standard. Members showed documents and played tapes of Trump advisers explaining the plan to declare victory ahead of time—and then, having established their foreknowledge of the gambit, showed their foreknowledge of the January 6 violence, too, insinuating that Trump was in on it as well. The committee also offered testimony from aides who said they heard Trump admit, privately, that he had lost the election.
Proving what someone knew or thought is much harder than proving what they did. Trump’s most slavish defenders have insisted the election really was stolen, but his slightly more honest ones (or those more capable of shame) have argued that even if Trump should have known that the election was not stolen, or should have known the January 6 would turn violent, or should have seen he needed to call the mob off, he didn’t. (It doesn’t say much for Trump that the best defense of his behavior is that he was completely alienated from reality.)
The committee has unearthed an impressive amount of evidence about the paperwork coup before January 6 and about the planning and execution of the insurrection itself—far more than many observers, including me, expected. But some facts remain out of reach. Vice Chair Liz Cheney said that more than 30 people invoked their Fifth Amendment right against self-incrimination before the committee. Others, such as former White House Counsel Pat Cipollone, offered insightful testimony on many topics but refused to disclose conversations with Trump because of executive-privilege claims.
All of this is why the nation must hear from Trump himself. He is the one person best equipped to know what he planned before the election, what he was doing on January 6, and what he was thinking and feeling at the time. Although it is true that Trump is not always self-aware, and plain that he is exceptionally dishonest in his public statements, his language in sworn testimony is surprisingly honest and blunt, as I reported in 2018.
Two main, competing narratives have emerged about January 6. One was advanced by the committee today: Trump tried to subvert the election through rhetoric and litigation, and when that failed, he tried to subvert it through force. Trump tells another story, which is that the election really was stolen, that his phone call asking Georgia’s secretary of state to find 11,000 votes for him was “absolutely PERFECT,” and that the “Unselect Committee,” as he calls it, is perpetrating a massive hoax.
If that is true, then surely Trump should have no problem testifying. In fact, surely he must be eager to do so, in order to set the record straight, because, as he has argued, the committee is telling only its view of the story. He should want to testify under oath to bolster his credibility.
If Trump does fight the subpoena, or if he were to invoke his own Fifth Amendment right against self-incrimination, the implication would be clear for the public to see. The Fifth Amendment right is just that: a baseline constitutional right. A criminal defendant’s decision to invoke it is not admissible as evidence of guilt. But this is not a criminal proceeding. It is a political one, in every sense, and it is a matter of great importance for the safety of American democracy. The public deserves a chance to know what its president was doing in a pivotal moment and to make up its own mind about a political leader outside the artificial environment of a courtroom.
If Trump is too cowardly to tell the public, under oath, what really happened on January 6, that will be the clearest testimony the committee gathers to prove its theory.