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Trump’s Lawyers Ask Supreme Court To Kill Jan. 6 Subpoenas

Lawyers say Schiff, Kinzinger statements prove investigation is a political attack

Republican presidential nominee Donald Trump stands at his podium during the Presidential Debate at Hofstra University on September 26, 2016 in Hempstead, New York. / Getty Images
• January 3, 2022 5:40 pm

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Lawyers for former president Donald Trump are pressing the Supreme Court to quash subpoenas from the congressional committee investigating the Jan. 6 riot at the Capitol.

Trump’s lawyers say statements in the press from Reps. Adam Schiff (D., Calif.) and Adam Kinzinger (R., Ill.) prove the House Select Committee on the January 6th Attack is using the subpoenas to punish Trump politically, which the Supreme Court has forbidden. The committee is seeking documents and communications from the waning days of Trump’s administration.

Schiff and Kinzinger have said they want the committee to expose alleged abuses to the voters and hold wrongdoers accountable. Trump’s lawyers say that’s the kind of fishing expedition the Supreme Court rejected in the Democrats’ aborted attempt to subpoena Trump’s tax records.

Democrats and a handful of House Republicans believe Trump himself was a prime cause of the riot, and they hope to definitively establish his complicity in the day’s events. Committee members have grown bullish in recent days, saying they’ve uncovered evidence the ex-president twice rejected his daughter Ivanka's pleas to intervene. But the showdown at the High Court is exposing the limits of the committee’s investigatory power, and they’ve yet to pursue top players like former vice president Mike Pence or Trump’s congressional allies.

The subpoenas are a threat to all future presidents, Trump’s emergency appeal to the justices warns. The president and his aides can’t work effectively if they know a future rival could rifle through their records to damage them politically, they argue. President Joe Biden has blessed the committee’s effort, heightening the stakes.

The Supreme Court turned back the House’s two-year effort to obtain Trump's financial records by subpoena in 2020. Though it left open a path for Democrats to follow, a seven-justice majority led by Chief Justice John Roberts held that Democrats had to connect their subpoenas to a legitimate lawmaking objective. They needed to show, for example, that Trump’s tax records could help them draft a piece of legislation. Congressional committees can’t "expose for the sake of exposure," the Court said, nor can they act like a law enforcement body and use subpoenas to try someone for wrongdoing.

Trump’s lawyers say the Jan. 6 committee is violating those commands, and they broadly emphasized that the subpoenas aren’t related to any legislative business.

Schiff told a late night show that the panel means to craft a narrative about the day itself and the events leading up to it.

"All [the committee] can do is expose all the malefactors, follow the evidence, wherever it leads, tell the American people the story of what went into January 6th, all the planning that went into it, who was behind it in terms of the money," Schiff said on Late Night with Seth Meyers. Schiff appeared on the program to promote his book on democracy and the Trump era. The High Court’s decision in the Trump tax case also warned lawmakers that "investigations conducted solely for the personal aggrandizement of the investigators" are never permitted.

Trump’s lawyers highlighted Schiff’s statement in their emergency appeal to the Supreme Court, saying it demonstrates the subpoenas were issued in service of a political goal, not a lawmaking one.

"Congress has no ‘general power to inquire into private affairs and compel disclosures,’ and ‘there is no congressional power to expose for the sake of exposure,’" their appeal reads, quoting from the Court’s decision in Trump v. Mazars.

The committee’s two Republican members have raised the possibility that Trump committed crimes related to the Capitol riot. Rep. Liz Cheney (R., Wyo.) suggested at a December hearing that Trump violated a federal law forbidding obstruction of congressional proceedings. Kinzinger hasn’t gone quite as far, but he said the committee was investigating the possibility in a December interview on CNN.

"I don't want to go there yet to say, ‘Do I believe he has [committed a crime],' I think that's obviously a pretty big thing to say. We want to know though," Kinzinger said.

Those statements, and others, Trump’s lawyers say, are ample proof that the committee is repeating the House’s mistakes in the tax return cases.

"[The committee] has not identified a clear legislative purpose in the present effort," Trump’s appeal reads. "Instead, the additional material it seeks to uncover seems focused on political exposure, not towards addressing security flaws that are easily uncovered through documents and testimony from security officers and experts."

Douglas Letter was general counsel for House Democrats in the Mazars case, and he is again leading the Democratic effort to obtain Jan. 6 documents.

The subpoenas were issued for Trump’s schedule, phone records, briefing materials, legal documents, and communications. Campaign materials such as polling data are also included in the request.

Trump’s lawyers say executive privilege covers many of the requested documents. For example, privilege typically applies to communiqués between the president and his aides.

A decision from the High Court on Trump’s request is expected before the end of the month. The case is No. 21A272 Trump v. Thompson.