How Trump might resist the January 6 panel subpoena

In this case, Nixon versus Fitzgerald, the majority felt that presidents should be able to carry out their constitutional duties without being hampered by the fear that a decision might expose them to civil damages after leaving office. The question in Mr. Trump’s case would be whether a president could be similarly hampered by fear of being compelled to testify before Congress.

Mr. Trump’s legal team could also invoke executive privilege to try to stave off the subpoena. In another case involving Richard Nixon, the DC Circuit Court of Appeals ruled in 1974 that a Senate committee investigating the Watergate scandal could not force Nixon, then sitting president, to turn over tapes of his conversations to the oval office.

The appeals court ruled that the Senate’s need for the tapes was not sufficient to overcome the presumption of secrecy preserving the presidential decision-making process. This blanket confidentiality is important, the courts have decided, so that presidents can receive candid advice from their aides on how best to carry out their constitutional duties.

(Most famously, about three months later, the Supreme Court upheld a Watergate prosecutor’s subpoena for the tapes, citing their greatest need in a criminal proceeding. Shortly after, Nixon resigned to avoid being impeached.)

Unlike Nixon in 1974, however, Mr. Trump is now a former — not a sitting president — and his claims to executive privilege would be weaker. The current incumbent, President Biden, who has greater authority to invoke or deny executive privilege, might not support it.

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Notably, Mr. Biden refused to support an earlier attempt by Mr. Trump to invoke executive privilege to prevent the Jan. 6 committee from subpoenaing the National Archives for the White House records. The Supreme Court, ruling against Mr Trump, refused to block the subpoena, although it did so in a way that left open the scope of an ex-president’s powers under the privilege executive.

Yet the courts might view forcing a former president to show up on Capitol Hill and testify under oath differently from obtaining documents. Mr. Biden may also be more reluctant to set a precedent that could help a Republican-controlled Congress subpoena him.