In response to the Jan. 6 committee’s vote on Thursday to issue a subpoena for his testimony, former president Donald Trump released a rambling, seemingly unhinged reply that doesn’t answer whether he intends to testify.
The web of illusions Trump has spun around Jan. 6 can’t survive contact with a legitimate, fact-based, rules-bound process. But not testifying is also problematic: It admits to fear of facing genuine questioning, which looks weak. So, Trump must try for as long as possible to inhabit a gray area where he blusters about owning his enemies on the committee while avoiding testifying to the committee at all costs.
Trump’s new response, a three-page letter that he plainly dictated while his lawyers cringed in the background, is aimed at fitting this bill. In a stream of delusion and megalomania, it rehashes all kinds of grievances, most prominently the lie of the stolen 2020 election. This is supposed to show Trump “owning” the committee while refraining from conceding that he does not plan to answer its direct questions.
If Trump were to testify, he would surely struggle to choose between admitting culpability or perjuring himself — or pleading the Fifth Amendment. He would be pressed on whether he knew well in advance that he lost the election, and on whether he decided long before the election to cast doubt on the result no matter what the voting showed, as part of a premeditated scheme to try to overturn an eventual loss.
The committee powerfully demonstrated evidence of premeditation in its final hearing. Trump would be confronted with that evidence.
Similarly, Trump would be cross-examined about evidence that he knew he was pressing his vice president, Mike Pence, to do something illegal in demanding that he scuttle the electoral count in Congress. The committee convincingly demonstrated evidence that Trump was extensively informed of this.
Trump would also face questioning about evidence amassed by the committee that he actively refused for hours to call on the rioters to stand down. This illustrated that Trump likely saw the mob as a weapon to intimidate Pence and members of Congress into allowing states to send new electors that would have made him, not Joe Biden, the next president.
Guess who testified to all these things? A lot of people who were close to Trump himself.
“He’s going to have to say, ‘They’re all lying,’ ” former FBI counsel Andrew Weissmann told me. “Even though a lot of these people worked for him.”
Trump would also have to deny he suggested Pence “deserved” to face hanging by the mob, as a top aide testified to hearing recounted. Trump would have to deny ever suggesting to House Minority Leader Kevin McCarthy (R-Calif.) that he approved of the rioters’ rampage, because they “are more upset about the election than you are.”
Trump cannot admit to these things, because they go to the core of whether he showed “corrupt intent,” which would be relevant to whether he violated federal laws. These include obstruction of an official proceeding (the electoral count) or conspiracy to defraud the United States (by interfering with lawful U.S. election processes).
“The key issue in a public corruption case is invariably the intent of the defendant,” Weissmann said.
National security lawyer Bradley P. Moss agrees that Trump would risk self-incrimination. “He can’t substantively admit to what went down without effectively conceding the point of corrupt intent,” Moss told me. “But he can’t misstate facts in his testimony either, lest he be subject to perjury charges.”
Trump must sustain a series of grand illusions in the eyes of the MAGA movement, but embedded in them is a deep tension.
On one hand, these illusions rest on the idea that Trump was gloriously victorious in 2020, the effort to reverse the outcome was a just cause, there was never any coup attempt, and all efforts at accountability over it are nothing but political persecution.
On the other, Trump must maintain the perception that he’s fearsomely in control of events and wields absolute mastery over his enemies. After the committee voted to subpoena him, a “source close to Trump” leaked word to Fox News that he totally wants to testify, to own the committee’s Democrats by rubbing their faces in the “truth” about the stolen election.
But Trump cannot sustain both fantasies forever. Testifying would explode the first and put him in more legal jeopardy. But not testifying would rupture the second. He would need to conjure some way of suggesting he’s owning the committee by cowering from it.
Trump’s escape route requires remaining in the gray area between those two poles for as long as possible. He must try to muddle through to the time when a GOP-controlled Congress might disrupt ongoing Justice Department investigations, and then on to an endgame where the department decides not to prosecute.
As for whether Trump will succeed in this, well, only the department itself can say.