Compelling Presidential Compliance with a Judicial Subpoena

Compelling Presidential Compliance with a Judicial Subpoena

Legal Sidebari

Compelling Presidential Compliance with a
Judicial Subpoena
May 4, 2018
Special Counsel Robert Mueller reportedly warned President Trump’s lawyers in a March meeting that if
the President declined to participate in a voluntary interview, Mueller could issue a subpoena compelling
the President’s testimony before a grand jury. The alleged exchange raises the question of whether a
sitting President, consistent with the separation of powers and Article II of the Constitution, may be
required to comply with a subpoena for his testimony as part of an ongoing criminal investigation.
Before addressing this question, it is necessary to define the type of subpoena that may be envisioned by
the Special Counsel. Special Counsel Mueller, who has been vested with the powers and duties of “any
United States Attorney,” has not been provided independent and unilateral authority to issue generalized
subpoenas for testimony. Instead, any subpoena to the President would likely be issued by a grand jury—
at the request of the Special Counsel—but under the authority of the judiciary. The subpoena would
therefore accurately be framed as an attempt by the judicial branch to compel testimony from the
President, giving rise to possible concerns under the separation of powers.
The Supreme Court has not directly confronted the question of compelled presidential testimony;
however, the question is not a novel one. It is, in fact, a question that has been the subject of some debate
throughout American history and any evaluation of the President’s obligations should be undertaken
within that historical context.
Examples from History: Thomas Jefferson and William Jefferson Clinton
The question of a President’s obligation to comply with a judicial subpoena connected to a criminal
investigation appears to have first arisen in 1807 during the criminal prosecution of Aaron Burr. Had Burr
taken the advice of his own character from Hamilton to “talk less” and “smile more,” perhaps he would
not have found himself in the unenviable situation of being a defendant in a trial for treason. But he had
allegedly conspired to create a separate and independent country in the present day southwestern United
States and was, therefore, in need of exculpatory evidence. For that he turned to the sitting President,
Thomas Jefferson, who Burr asserted had a letter in his possession that would clear Burr’s name.
Although Jefferson objected, Chief Justice John Marshall—who presided over the trial—rejected
arguments that a sitting President was not subject to judicial compulsory process and issued a subpoena to
the President directing him to turn over the letter. Jefferson’s objection had relied principally on the
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separation of powers, asserting that if the President were “subject to the commands” of the judiciary, the
courts could “bandy him from pillar to post…and withdraw him entirely from his constitutional duties.”
In a precedent that would be replicated by future Presidents, Jefferson overlooked the subpoena, and
instead turned over the letter and other documents to the federal prosecuting attorney in what he viewed
as a voluntary act.
Notwithstanding Jefferson’s position, the formal executive branch position has drawn a clear distinction
between judicial subpoenas for documents and those for testimony. With regard to documents, the
executive branch has acknowledged that the President enjoys no absolute immunity, suggesting instead
that any exemption from compliance “must be based on the nature of the information sought rather than
any immunity from process belonging to the President.” With respect to testimony, however, the
executive branch has asserted that “sitting Presidents are not required to testify in person at criminal
trials.” Accordingly, while Presidents since Jefferson have provided courts with written interrogatories,
depositions, and videotaped testimony, no sitting President has been forced to personally testify.
Nearly 200 years after the Burr trial, President Clinton took a page from the Jefferson playbook when he
was faced with a somewhat similar scenario. Kenneth Starr, who had been appointed as an Independent
Counsel to look into the Whitewater, and later Lewinsky, matters had a grand jury issue a subpoena to the
President in 1998 for testimony relating to that investigation. The subpoena prompted negotiations
between Starr and the White House, which ultimately resulted in a compromise in which Clinton agreed
to testify voluntarily before the grand jury, rather than under compulsion, in exchange for Starr
withdrawing the subpoena. Starr also agreed to the President’s condition that he testify from the White
House over closed circuit video, rather than in person. Thus, like Jefferson, Clinton provided information
voluntarily rather than under compulsion.
Judicial Decisions Relating to Presidential Immunity from Compulsory
Process
Although the Supreme Court has not directly addressed the question of whether a President can be
compelled to provide testimony before a grand jury, it has issued a series of three decisions that give a
general sense of the principles governing presidential claims of immunity from judicial process. These
cases reflect a delicate balancing of two countervailing principles: accountability, consistent with the
central tenet of the American system that no man is above the law, and executive branch independence,
including the proposition that courts are not required to “proceed against the [P]resident as against an
ordinary individual.”
The Court unequivocally rejected the idea that the President is immune from all compulsory judicial
process in U.S. v. Nixon. That case involved a criminal trial subpoena issued to President Nixon seeking
tape recordings made in the oval office. The tapes were needed as evidence in the prosecution of those
suspected of the Watergate break-in. The President’s attorneys argued that the President was absolutely
immune from such a subpoena for two reasons: the tapes were protected by executive privilege and the
separation of powers “insulates a President from a judicial subpoena in an ongoing criminal prosecution.”
The Court disagreed, holding instead that the President’s interests in maintaining confidentiality could not
“prevail over the fundamental demands of due process of law in the fair administration of criminal
justice.” The Nixon case therefore stands for the proposition that a President may be ordered to comply
with a judicial subpoena for documents, but the opinion did not address compelled testimony.
Nearly a decade later in Nixon v. Fitzgerald, the Court again affirmed that the separation of powers does
not require presidential immunity from all compulsory judicial process, but nevertheless determined that
the President does enjoy absolute immunity from civil suits seeking damages for his official acts. Like
Nixon, the Fitzgerald opinion engaged in a functional balancing of interests, this time finding in favor of
the former President. The Court appears to have provided at least three justifications for according the

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President an absolute shield in this context: his “unique position in the constitutional scheme;” the “risks
of the effective functioning of government” that may result from the “diversion of [the President’s]
energies by concern with private lawsuits;” and concern that making the President susceptible to damages
lawsuits would make him “unduly cautious in the discharge of his official duties.”
Finally, in the 1997 opinion of Clinton v. Jones, the Court held that the President is not immune from civil
suits for damages arising from unofficial acts. That case involved allegations made against President
Clinton based on acts taken before he assumed office. The Jones opinion distinguished Fitzgerald, finding
most of the justifications for immunity for official acts to be “inapplicable to unofficial conduct.” The
President, however, also argued that the separation of powers prohibited the suit from proceeding while
he remained in office because the “burden” a civil case would put “on the Presidents time and energy”
would “impair the effective performance of his office.” The Court rejected this argument, holding instead
that “if properly managed…[the civil suit] appears to us highly unlikely to occupy any substantial amount
of [the President’s] time.” Moreover, the Court went on to state that the fact that a court’s action “may
significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation
of the constitution.”
It is important to note that although permitting the civil suit to go forward, the Jones court explicitly
avoided the question of compelled presidential testimony. The opinion noted that although previous
Presidents have “responded to written interrogatories, given depositions, and provided videotaped trial
testimony…no sitting President has ever testified, or been ordered to testify, in open court.” The case
before it, the Court reasoned:
Does not require us to confront the question whether a court may compel the attendance of the
President at any specific time or place. We assume that the testimony of the President, both for
discovery and for use at trial, may be taken at the White House at a time that will accommodate his
busy schedule, and that, if a trial is held, there would be no necessity for the President to attend in
person, though he could elect to do so.
It is clear that a wide array of variables may generally be at play in any assessment of the validity of a
subpoena issued to the President, including whether the subpoena is issued as part of a civil or criminal
proceeding; whether the information sought relates to official or unofficial acts; and whether the subpoena
is for documents or testimony. When read together, Nixon, Fitzgerald, and Jones would appear to
establish at least two important governing principles. First, with regard to accountability, it is clear that
the President is not absolutely immune from all judicial compulsory process. The Court has
“unequivocally and emphatically endorsed” the principle that the President may be made to comply with
a criminal subpoena for documentary evidence, and that he is subject to civil proceedings for unofficial
acts. Second, the President is not to be treated like any other official, thus the Constitution prevents the
courts from subjecting the President to judicial requirements that impede him from carrying out his
Article II duties in violation of the separation of powers. For this reason, the President is not subject to
civil suits for damages in cases arising from his official acts.
One of the chief separation-of-powers questions stemming from a possible subpoena to the current
President appears to relate to the degree of interference that compliance with a subpoena for grand jury
testimony would have on the President’s ability to perform his constitutional duties. Presidents have
previously testified on a voluntary basis without any apparent and immediate consequence to their ability
to carry out their constitutional functions. Moreover, the “distraction” and “diversion” burdens imposed
upon the President by a subpoena for testimony could be analogized to the burdens imposed by being
compelled to comply with a criminal subpoena for documents or being subject to a civil proceeding as
long as the President is given some degree of flexibility in where, when, and for how long he provides
such testimony. As previously noted however, the executive branch has historically adopted the position
that the President cannot be made to testify. An order to appear and testify, it is argued, is meaningfully
different from an order to submit documents because it would require the President’s personal

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participation, and create a period of time in which the President is physically unable to carry out, or
attend to, his official duties.
Finally, it should be noted that even if a court is willing and able to enforce a grand jury
subpoena for testimony, the President would still be able to assert available privileges such as
executive privilege and the Fifth Amendment privilege against self-incrimination in response to
specific questions.

Author Information

Todd Garvey

Legislative Attorney

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