The idea of a possible presidential subpoena is in the news again, bringing back a question that’s been debated for months. To what extent does a President have to respond to a subpoena request?
The current debate is over reports that Special Counsel Robert Mueller brought up the subpoena topic with President Donald Trump’s legal team in March as part of Mueller’s desire to talk to Trump about potential Russian interference in American elections and matters related to Mueller’s investigation.
Mueller’s investigation came at the Justice Department’s request and a potential subpoena for President Trump would come as part of the grand jury proceedings in that investigation, if the President and his attorneys can’t agree to an interview or believe compelled testimony isn’t appropriate.
The act of a President testifying in legal investigations and cases is unusual but not without precedent. In 1876, President Ulysses S. Grant voluntarily testified at the White House in a criminal case involving the Whiskey Ring as a witness for the defense of his own personal secretary, Orville Babcock. President Jimmy Carter also gave sworn testimony in three situations during his one term in office. Other Presidents have given testimony under different circumstances.
While two Supreme Court precedents offer some guidance in the controversy, the matter remains open ended for several reasons.
If a subpoena is issued to a President, the President probably would be compelled to respond to it in some fashion. In the United States v. Nixon (1974), a unanimous Supreme Court said President Richard Nixon had to answer a special prosecutor’s subpoena to hand over the Watergate tapes. President Nixon’s lawyers argued the President could decline the request based on the concept of executive privilege and a need for confidentiality. They also believed that the case was non-justiciable – or not eligible to be heard by a court - as an "intra-executive" conflict between Nixon and a special prosecutor also in the executive branch.
Then in 1997, the Supreme Court said in Clinton v. Jones that President Bill Clinton couldn’t use an executive privilege defense to avoid testimony in a civil lawsuit while he was in office. In the Court’s unanimous opinion, Justice John Paul Stevens said that decision didn’t address the question of “whether a court may compel the President's attendance at any specific time or place.” But in a later investigation, President Clinton responded to a subpoena and agreed to testify via a video session with the independent prosecutor.
In the Mueller investigation, a subpoena from a grand jury would probably involve testimony from President Trump, and not the production of material evidence. The Trump legal could argue a subpoena in this case is inappropriate. One theory is that the attorneys could site a 1997 opinion by the U.S. Court of Appeals for the D.C. Circuit about an investigation into Clinton-era Agriculture Secretary Mike Espy.
Judge Patricia Wald’s ruling said investigators would need to prove they were seeking information unavailable elsewhere to overcome a claim of executive privilege. “We are ever mindful of the dangers involved in cloaking governmental operations in secrecy and in placing obstacles in the path of the grand jury in its investigatory mission,” Wald wrote. “There is a powerful counterweight to these concerns, however, namely the public and constitutional interest in preserving the efficacy and quality of presidential decision-making.”
But the “Espy Standard” may only apply to the President’s actions while in office, some commentators believe. And the United States v. Nixon (1974) precedent could decide the outcome in a dispute over a President complying with a subpoena that has been issued.
Two law professors, Lisa Kern Griffin of Duke University and Louis Seidman of Georgetown University, told the Washington Post on Monday that the law in this case probably would side with Mueller. “I think that the precedent set by the Nixon case is unfavorable to the President’s claim that he is somehow above the law and cannot have his testimony compelled before the grand jury,” Griffin told the Post.
Two other factors are important in this scenario: what happens before a subpoena is issued and what happens after. Seidman told the Post that Deputy Attorney General Rod Rosenstein would need to approve any grand jury subpoena in the case. If Rosenstein were not in office for some reason, his replacement could decide not to approve the subpoena or Rosenstein himself could not agree to approve it in his current position.
But if a subpoena were issued to President Trump, then several other scenarios are in play. One scenario could be an agreement for the President and his legal team to answer questions in a non-courtroom session. Another would be for the Trump legal team to appeal to the courts for guidance. And President Trump could always cite the Fifth Amendment during testimony.
Part of the Fifth Amendment reads that no person “shall be compelled in any criminal case to be a witness against himself.” If President Trump were to testify and then refuse to answer questions by "taking the Fifth," it surely would cause significant political risks.
However, President would have the same rights as any other citizen in invoking its self-incrimination clause. Last year, the Congressional Research Service explained that the grounds for invoking the amendment, in a discussion about former National Security Adviser Michael Flynn and a possible congressional subpoena. “The Supreme Court has taken a broad view of what constitutes incriminating testimony, holding that the privilege protects any statement ‘that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might so be used,’” it said.
That concept is related to a 1956 Supreme Court decision, Slochower v. Board of Higher Education of New York City, where Justice Tom Clark said that “a witness may have a reasonable fear of prosecution and yet be innocent of any wrongdoing. The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances.”
Other unknowns, which are speculative, include a President not complying at all with a subpoena and how the courts would consider such an act. “Nobody’s ever tried to hold a President in contempt, and it’s anybody’s guess what a court would say about that,” Seidman told the Post.
Scott Bomboy is editor in chief of the National Constitution Center.