AILSA CHANG, HOST:
First came this unanimous vote among members of the House select committee investigating the January 6 attack on the Capitol.
(SOUNDBITE OF ARCHIVED RECORDING)
UNIDENTIFIED PERSON: Mr. Chairman, on this vote, there are nine ayes and zero nos.
CHANG: And today came the next and extraordinary step. The committee has formally issued a subpoena compelling former President Donald J. Trump to testify and turn over documents. Now, expectations that the former president will actually comply anytime soon have been low to nonexistent. And we're going to talk about the stakes and possibilities here with attorney Nick Akerman, a former federal prosecutor who also helped prosecute the Watergate case. Welcome.
NICK AKERMAN: Thank you - nice to be here.
CHANG: Nice to have you. OK. So let me first ask you this. What avenues does former President Trump have to respond to this subpoena if Trump wanted to legally avoid testifying or legally avoid turning over any of these documents? What could he do here?
AKERMAN: Well, I think the one thing he could do if he just wanted to do it legally without incurring any kind of liability was simply the letter that's sent to him says to him that if he intends to assert his Fifth Amendment privilege - meaning that if he were to answer questions truthfully, it would tend to incriminate him - that he should so notify the committee. And it would seem to me upon that notification, he would probably be excused for attending personally. That would be the proper way to do it if he's trying to get away from having to testify at all.
CHANG: What about if he's trying to get away from turning over any more documents?
AKERMAN: Well, even the documents, I think he would still take the Fifth Amendment.
CHANG: OK.
AKERMAN: He could do that, unless, of course, you know, these are government documents. Now, it could very well be that many of the documents that are called for here might be in those documents that were seized by the FBI in that raid on Mar-a-Lago. We don't know. But one has to wonder.
CHANG: Right. Now, what would be the consequences if Trump doesn't comply with the subpoena whatsoever and doesn't invoke the Fifth, as you just explained? Isn't it a crime to defy a congressional subpoena?
AKERMAN: Oh, it is. Look what happened to Steve Bannon today. I mean, he's going to serve time in jail as a result. But the other consequences are he can be held in contempt. There's two avenues there. One is to go through the court system, which is not really a viable option now. If it turns out that the Republicans take the House in the upcoming midterm elections, the committee will be disbanded. And any effort in court to try to and enforce that subpoena will also kind of disappear at that point.
CHANG: Right.
AKERMAN: The one option that they do have is that the House itself, Congress, has the inherent power to basically enforce a contempt. And that's been held by the Supreme Court. It's been upheld. It was last done, I think, in the Teapot Dome scandal. And they could send the sergeant of arms to Trump, arrest him, bring him into the committee room, sit him down on the chair. And at that point, the committee could start questioning.
CHANG: OK. Well, for a moment, let's inhabit this world where Trump actually does testify and actually does turn over more documents. Can you lay out explicitly what does he risk there?
AKERMAN: Well, first of all, anything he says will be used against him. He's going to be creating a transcript and statement under oath. And if he lies, he can be charged for perjury. So if I were his defense lawyer, I would strongly urge him not to testify because what he's going to wind up doing is getting himself in more trouble than he is now.
I mean, this is what happened to most of the major defendants in the Watergate scandal. They wound up going into the Senate select committee that was investigating the Watergate break-in, and they lied. And then they were indicted for obstructing justice with respect to the investigation itself into the Watergate. But they were also charged with lying before Congress and charged with perjury. So that is the biggest risk he has here...
CHANG: Yeah.
AKERMAN: ...For testifying.
CHANG: Well, can I just ask you - because you mentioned Watergate. I mean, you lived through and helped prosecute one of the most famous presidential scandals in history. And I just wonder, as you're taking in all that's unfolded with the January 6 investigation, how does it compare to Watergate in your mind personally?
AKERMAN: Well, I - in a lot of ways, this has gone way beyond Watergate. I mean, Watergate, although it wasn't narrow, it involved the break-in to the Democratic National Committee. It was very serious. It was basically trying to undermine an election again. And it was being orchestrated by the president of the United States. Here with Donald Trump - I mean, if you just compare the January 6 insurrection, I mean, the idea that a president would actually try and, you know, keep himself in power and stop the peaceful transfer of power through force and through violence is, you know, pretty incomparable to anything that happened in Watergate.
CHANG: That is attorney and former Watergate prosecutor Nick Akerman. Thank you very much for joining us today.
AKERMAN: Thank you for having me. Transcript provided by NPR, Copyright NPR.
