Fight over Jan. 6 subpoena may test Trump’s drain-the-clock court tactic

Former President Trump’s success this week in delaying the transfer of his presidential papers to congressional investigators probing the Jan. 6 insurrection gave some court watchers a sense of déjà vu. 

The battle over the House panel’s subpoena for Trump’s records is in the early stages of what is likely to be a months-long fight that seems likely to reach the Supreme Court — which could then lead to additional feuding in the lower courts. 

The prospect of a protracted Trump court fight drew comparisons to the litigation strategy he wielded as president, where delay tactics were deployed to stymie lawsuits, hamper investigators and fend off subpoenas, with numerous cases against Trump and his administration still hanging in the balance as he left the White House.  

Although key differences exist between the legal statuses of President Trump and citizen Trump, some experts say there remains a real possibility he could once again drag out the legal process to drain the political clock. 

“This is a tried-and-true strategy for Trump, before, during, and now after his presidency,” said Steven D. Schwinn, a professor at the University of Illinois Chicago Law School. “He seems skilled at this, and I don’t think his raw drag-out-the-litigation skill is any less salient now that he’s not the president anymore.”

So far, the courts presiding over Trump’s latest legal bid have moved at a brisk pace.

Trump filed suit last month to challenge a subpoena from the House select committee probing the Jan. 6 attack on the Capitol. As part of its investigation, the panel is seeking records housed at the National Archives that relate to Trump’s time in office, including telephone records and visitor logs.

A federal judge in Washington, D.C., on Tuesday rebuffed Trump’s bid. Among Trump’s various arguments was an assertion of executive privilege over the records, a claim that has been seriously undermined by President Biden’s refusal to endorse it. 

Trump appealed the ruling by U.S. District Judge Tanya Chutkan to the U.S. Court of Appeals for the D.C. Circuit and asked Chutkan to stay her ruling. She declined, and the appeals court on Thursday granted a temporary injunction to prevent the National Archives from turning over the records. It also scheduled oral arguments in the case for later this month and could issue a decision as soon as December.

But while the lower courts have moved quickly, “the Supreme Court’s a different story,” said Schwinn, who believes Trump’s challenge will likely be filed to the justices.  

“The Supreme Court has already ruled in a similar case in a way that wasn’t a clear win for Trump — and really a loss for him — but nevertheless allowed him to drag out the litigation in the lower courts on remand,” he said, referring to the court’s July 2020 ruling in Trump v. Mazars, which dealt with congressional subpoenas for Trump’s financial records. 

Portions of Trump v. Mazars are still being litigated, 10 months after Trump left office. That case and a similar dispute concerning a New York grand jury subpoena for Trump’s tax returns are illustrative of the former president’s ability to tie up the courts in knots.

Manhattan District Attorney Cyrus Vance obtained a grand jury subpoena for Trump’s tax returns in August 2019. But it took his office 18 months of fighting Trump in the courts before Vance finally obtained the documents in February of this year.

Over the course of litigation, Trump mounted one appeal after another, with the case ping-ponging between the district court, intermediate appellate court and Supreme Court — then back again. 

By the time Trump left office, an emergency request was pending from Trump to the justices asking them to shield his financial records. Though his legal effort ultimately failed in the courts, it succeeded in draining the political clock. 

“That could happen here, too, in which case Trump would effectively drag this out, maybe past the midterms,” Schwinn said. “And if Republicans take the House, he’ll have effectively run the clock.” 

The committee investigating the Jan. 6 of the Capitol has not established a hard deadline for completing its work. The clearest indication of a timeline came from Rep. Bennie Thompson (D-Miss.), the committee’s chairman, who told Politico he hopes the panel can complete its work by “early spring” of next year. 

Not all court watchers who spoke to The Hill believe Trump’s legal bid will exceed the committee’s window.

Bradley Moss, a national security lawyer and partner in the Law Office of Mark S. Zaid, predicted the case could be wrapped up no later than February. 

“Mr. Trump is in a significantly weaker litigation posture now compared to that which he had when he was still sitting in the big chair in the Oval Office,” Moss said. “There is no need for his litigation opponents to breach layers of defenses about immunity like they had to do in the past.”

For now, the case is being fast-tracked by the D.C. Circuit, which set a Nov. 30 date for oral arguments in Trump’s appeal. But not everyone is convinced the rest of the litigation will continue apace.

Mark Tushnet, a law professor at Harvard University, said he thinks Trump’s legal claims are “highly unlikely to prevail.” But he held open the possibility that Trump could nonetheless succeed in drawing out the litigation.  

“It may be that the January 6 committee will be able to get enough information to provide a credible and detailed account of events, through cooperating witnesses and the like,” Tushnet said. “But at the moment it seems likely that at least some of Trump’s claims will indeed run out the clock before the 2022 elections.”