Litman: The Trump subpoena sets up a historic battle over executive privilege.

Last week, Donald Trump’s lawyers formally accepted service of the Jan. 6 committee’s subpoena demanding documents by Friday and the former president’s testimony 10 days later, setting the stage for a historic legal battle pitting the executive branch against the legislative branch.

That is as far as the fight will go, I’d wager. Each side has good reason not to test its luck by filing suit.

Of course, a fight would not be in question if the former president chose to comply with Congress’ legal demands. There are reports that Trump, supremely confident of his ability to dominate any public setting, is actually eager to testify.

That’s hogwash.

Any protestations by his lawyers that they are having to physically hold Trump back from showing up and raising his right hand are all theater. They know his inevitable fabrications would subject him to perjury charges, ones that the Department of Justice would have no choice but to act on.

The members of the Jan. 6 committee are sensible enough (and many are jaded enough from dealing with Trump’s head fakes during two impeachments) to anticipate that their lawful command will be snubbed.

They’re also sensible enough to realize that litigation to attempt to force the matter would only undermine the broad mission the committee has pursued splendidly to date.

The Trump subpoena expires with the Congress that issued it. During the first week in January, when the next term opens, it will be a dead letter. And if, as expected, a new Republican majority takes over in the House of Representatives, it is far more likely to investigate the Jan. 6 committee than to revive its legal status.

So the committee may have just 10 weeks or so until it turns into a pumpkin. At the plodding pace of federal lawsuits, that’s barely enough time to get out of the gate.

There’s a further complication. Any attempt to get Trump to testify would require a vote by the entire Congress to find him in contempt. The Democrats would still have their slim majority in a lame-duck session, but it’s far from clear that they would all be united in putting themselves on the wrong side of the Republican powers-to-be.

Even if a contempt resolution were forthcoming, the next step — referring Trump to the Department of Justice for criminal charges — is another iffy proposition. It worked with Stephen K. Bannon, who defied a committee subpoena issued in 2021. In October, Bannon was sentenced to four months in prison and fined $6,500.

But it’s far from certain that the Justice Department would agree to bring a criminal the case against Trump. That’s because it’s unsettled law whether a former president can be held in contempt for rebuffing a congressional subpoena.

In fact, the department’s Office of Legal Counsel, in a pesky memo written in 2007, has already suggested it isn’t legal, invoking the historical example of President Truman. Truman, then out of office, refused to comply with a subpoena to testify to the House Un-American Activities Committee in 1953 and Congress didn’t pursue the matter. He later voluntarily testified to another committee, as have sitting presidents. Some have cooperated in varying degrees…