CHERYL W THOMPSON, HOST:

The House committee investigating the January 6 attack on the U.S. Capitol is waiting for a response from former President Trump. This past week, the committee issued a subpoena requiring that he testify under oath and turn over documents. In a letter accompanying the subpoena, the committee wrote that the former president, quote, "personally orchestrated and oversaw a multi-part effort to overturn the 2020 presidential election and to obstruct the peaceful transition of power." But what are the chances that the former president will testify, and what happens if he refuses? For that, we're joined by former Deputy Assistant Attorney General Harry Litman. Welcome back to the program.

HARRY LITMAN: Thanks, Cheryl.

THOMPSON: So expectations are low that the former president will comply with the subpoena, no?

LITMAN: Yeah, I think they are low, but they seem to be high that his noncompliance will trigger a sort of battle royale in the courts. I'm not sure that will happen, but I think that first supposition most people have, and I share it - very, very hard to see him showing up and raising his right hand.

THOMPSON: So if he doesn't comply, what are the chances that he would face criminal charges, like his former adviser Steve Bannon, who, as you well know, last week was sentenced to four months in prison and fined for ignoring his subpoena to testify before the committee?

LITMAN: Well, several things have to happen, and they're all in the shadow of a really quickly ticking timeline because the subpoena itself only lasts as long as the Congress that voted it lasts, meaning it expires of its own accord on January, at the end of the term. So here would be the drill. He has refused. Then the committee would have to vote him in contempt. Then the whole House would have to vote him in contempt. Then they would have to refer it to the Department of Justice for a criminal contempt charge. Then the Department of Justice would have to decide to bring that charge, as they did with Bannon, but as they didn't do, for example, with Mark Meadows.

And why not? Probably - I mean, they don't - they didn't give us the reasons, but probably because Mark Meadows had an interesting legal claim that made it less cut-and-dried that he had been just contemptuous. Trump has that kind of claim as well. The courts have never decided whether a former president can be subpoenaed, especially for acts that he undertook during his tenure as president. So that, I think, would weigh against the department's pulling the trigger, but that's already several steps down the line.

THOMPSON: I'm wondering, is this sort of some kind of really choreographed number here where the committee imposed a November 4 deadline - right? - for him to turn over records, but...

LITMAN: For the documents, yeah.

THOMPSON: Yes, for the documents - but then a November 14 deadline to testify, which is nearly a week after the midterm elections. Is he gambling that the Republicans will take back the House and end the committee's work?

LITMAN: Well, yes, in general. A lot of people are, including Republicans. So that's right. Come November 14, let's say the Republicans have taken things over - the landscape changes so much and it's sort of - the rug is pulled out from under the committee. They know it's a certainty - near certainty - that the new majority will shut down their work. And basically, the whole thing is in its dying embers. So I think all their focus will be on finishing the report and making it as sort of forceful as possible rather than engaging in this side battle that they could lose. They want to, you know, end their work with as emphatic a kind of condemnation of him as they can. That letter that you mentioned upfront, by the way, Cheryl, is - that wasn't part of the subpoena. They just kind of added it, and it was blistering. And I think it's a real portent of what's to come in the report.

THOMPSON: Well, let's talk about that letter - that letter that was added to the subpoena. It makes the point that Trump was at the center of the effort to overturn the election. Did we learn anything new from what they laid out, or do we have to wait till December for that much-anticipated report?

LITMAN: Well, look, they were - it was a very confident letter. And it says not - that there is overwhelming evidence. You know, I think it's a summation of what they've done, and, in particular, they've had a real tour de force of proof of his intent. Going into it, it all seemed murky - how are you going to actually show he meant it? - and they marshalled dozens of pieces of evidence that really leave it quite clear that he was told again and again this is illegal, and he proffered it anyway. You know, it made a very strong case about his intent. I do think when the report comes out, there will be some new evidence. They - you know, every week, they tell us people are - keep coming forward. But I think it will, in the main, be what we've heard so far, except, if past is prologue, they've done a really phenomenal job of kind of marshalling the evidence, putting it together in prosecutorial kind of nuts and bolts and laying it all out there. And I think the report itself will be their final effort along these lines.

THOMPSON: One final question, Harry. Why bother with a subpoena if you know it's - it will be ignored? Is it just to sort of check the box or cross the Ts or what?

LITMAN: Look, it is a gesture of sorts, but that shouldn't be - I don't mean by that that it's in any way trivial or merely a posture. We've gone nearly two years trying to get to the bottom of what happened in the biggest threat to the peaceful transition of democratic rule in our history, and the man at the center who, on top of everything else, was constitutionally charged with making sure the laws were duly executed, hasn't given the American people and the Congress the benefit of his views. There are many instances - they're in that letter - where presidents have come forward voluntarily. Now, I think it's right that former President Trump won't, but they really want to be able to emphasize that, and especially when he is likely to come out with all these diatribes. They want to have the rhetorical counterpoint - we gave him his chance to come forward and he refused it. And I think that is part of an overall case against him and not simply a kind of mark to score on the ledger.

THOMPSON: That was Harry Litman, former Deputy Assistant Attorney General and host of the "Talking Feds" podcast. Thanks so much, Harry.

LITMAN: My pleasure. Thanks for having me. Transcript provided by NPR, Copyright NPR.