With the news that Special Counsel Robert Mueller might issue a grand jury subpoena to President Trump, we again must confront the constitutional issue of whether a court can compel a sitting president to give testimony. Failure to comply with a grand jury subpoena can result in contempt of court, although witnesses always retain their usual rights such as the Fifth Amendment right not to self-incriminate themselves or their right to protect confidential communications with their lawyers. For the president, it is tempting to invoke the bromide that no person is above the law, but presidents occupy a unique position. We do not want to turn the criminal justice system into politics by other means. A prosecutor with a political ax to grind could easily abuse the grand jury subpoena power. Government through the ballot box suffers when the prosecutorial process becomes politically weaponized.
On the other hand, there is one very good reason why we would want presidents to testify before a grand jury. Criminal proceedings are among our most important governmental functions. When a president has evidence relevant to a criminal case, a grand jury needs to hear it.The few times the issue has arisen, the courts have balanced the competing considerations. Generally, this balancing has meant the president must testify although not without restrictions. In 1807, a federal district court subpoenaed President Jefferson to testify in the treason trial of former vice-president Aaron Burr. Chief Justice John Marshall rejected Jefferson’s claim of complete immunity from testifying. Exactly what happened next is not clear, but Jefferson never traveled to then-faraway Richmond, Virginia, where the trial was being held.
President Monroe was subpoenaed to appear as a witness in an 1818 court martial against a naval officer. Monroe’s attorney general agreed the president could be subpoenaed although he also expressed concerns about calling the chief executive away from the seat of government. Monroe submitted his testimony through written interrogatories rather than spending several days travelling to the trial. Perhaps most famously, a unanimous Supreme Court in 1974 ordered President Nixon to respond to a subpoena duces tecum from the Watergate special prosecutor. A subpoena duces tecum compels the turnover of documentary evidence, in Nixon’s case Oval Office tape recordings and other materials, rather than the verbal testimony of the witness.
In 1997, the Supreme Court turned away President Clinton’s claim that during his presidency he should not have to defend Paula Jones’s civil suit stemming from allegations of sexual misconduct while he was governor of Arkansas. Clinton v. Jones rejected the notion that the president is immune from judicial process during his term and instead directs courts to put appropriate safeguards in place to prevent abusive lawsuits. President Clinton’s false testimony in his deposition in the Jones lawsuit led to a subpoena from Independent Counsel Kenneth Starr. Clinton resisted. When he agreed to voluntarily submit to questioning, Starr then dropped the subpoena.
There is no precedent directly on point. The news accounts suggest Special Counsel Mueller seeks President Trump’s personal testimony. Moreover, the testimony might involve not just alleged criminal wrongdoing by others but perhaps by the president himself. This is exactly where concerns about politics driving the grand jury process become paramount. If President Trump defied a judicial subpoena, what would happen next is anybody’s guess. Most constitutional scholars believe Congress must impeach the president before he can be criminally prosecuted. Whether a court labeled contempt criminal or civil, the principle still would prevent the court from jailing the president to coerce compliance. If a court cannot enforce a subpoena, one might question the legality or at least the wisdom of issuing one in the first place. One thing is for sure. If Special Counsel Mueller does move forward with a presidential subpoena, nothing is for sure.