Serving the President

When must the president obey a subpoena?

Long after the tawdriness that has become the Clinton administration is forgotten, the effects of the Lewinsky episode on the presidency will still be felt. In his "war" against Independent Counsel Kenneth Starr, the president has deployed every available weapon. A variety of presidential privileges have been dusted off or made up–from privileges of communications with government lawyers or political advisers to privileges preventing Secret Service agents from testifying about what they have witnessed while on duty. The shame is not that the courts have uniformly rejected these claims but that they were litigated in the first place.

One significant issue remains unsettled: whether a president is legally obligated to comply with a subpoena. Although it appears that this question will not be answered during the Clinton presidency, current events suggest that the issue will eventually have to be resolved. In 1974, the Supreme Court ordered Richard Nixon to turn over the Watergate tapes, but the Court has not yet required a president to testify in a civil or criminal proceeding. By reaching a voluntary arrangement with the president to testify before the Whitewater grand jury, Starr avoided lengthy litigation, and Clinton avoided another potentially embarassing legal defeat. Starr seemed hesitant to strip away this last vestige of presidential cover, and rightly so. The president's duty to comply with a subpoena raises tricky constitutional issues. As a nation we would be better off if the question were not settled in court.

Thomas Jefferson was the first president to face this problem, and he insisted that the president could not be independent of the judiciary if "he were subject to the commands of the latter" and "if the several courts could bandy him from pillar to post." Similarly, in his Commentaries on the Constitution (1833), Justice Joseph Story concluded that the president must be allowed to perform his duties "without obstruction…accountable only to his country, and to his own conscience."

Yet Kenneth Starr obtained a subpoena for President Clinton to appear before the Whitewater grand jury and withdrew it only after the president agreed to testify. Starr clearly decided that a second appearance by the president was unnecessary, but Clinton's uncooperative behavior before the grand jury must have made that a difficult call.

If a prosecutor believes a president is being uncooperative to such an extent that issuing a subpoena is his only option, must the president comply? How would a president be punished if he refused? Who would put the president in jail for contempt? Such practical questions highlight the difficulty of thinking of the president as if he were a private individual rather than a constitutional officer.

There are strong constitutional arguments on both sides of this issue. Since a refusal by the nation's chief law enforcement officer to obey a court order is deeply troubling, those who value the rule of law might argue that a president should comply with any subpoena. Claiming that the president is not required to obey normal judicial procedures smells suspiciously like the kind of monarchical privilege the Founders rejected.

There is also the general responsibility the president has for guaranteeing the continuation of our constitutional system of government, what Nobel laureate James M. Buchanan has called "constitutional ethics." The president has a constitutional responsibility to uphold the rule of law, and he should testify when called unless there are compelling reasons not to do so.

The president also has a responsibility to faithfully execute the laws. As Harry Truman noted, the buck has to stop somewhere. Richard Nixon acted on this assumption when he fired Watergate prosecutor Archibald Cox after promising Cox the freedom to conduct an independent investigation. Nixon's justification for firing Cox was inadequate, however, and the president appropriately suffered the consequences. The check on his actions, though, was political rather than legal.

Fortunately, presidents (even Bill Clinton) have made arrangements to be deposed when asked. And the extraordinary procedures the courts have employed in those cases underscore the unique status the president holds. Recall that Clinton's grand jury testimony was transmitted from the Map Room of the White House by closed-circuit video, not given before the jurors at the federal courthouse.

Yet federal prosecutors aren't the only persons who may wish to subpoena a president. As a defendant in a treason trial in 1807, Aaron Burr prevailed on Chief Justice John Marshall to subpoena President Jefferson to turn over relevant correspondence. When Jefferson refused to fully comply, the Court backed off, leaving the issue unsettled. The trial pitted Jefferson against two political enemies, Burr and Marshall, so there was room for cries of partisanship on both sides.

But the trial did signal the dangers of the subpoena power. Even when the president has not been the subject of an investigation, litigants have tried to claim his relevance to their own suits. The American judiciary is independent of the executive branch, opening the possibility that hostile judges could use their legal powers to harass and hamper a president, perhaps with the encouragement of partisan litigants.

Could any two-bit local prosecutor subpoena the president? Fortunately, as a matter of federalism, there are well-established principles for distinguishing federal subpoenas from local ones and for recognizing presidential immunity from the latter.

In the early decades of the 19th century, several states tried to prevent the congressionally chartered Bank of the United States from operating within their borders and competing against state-chartered banks. In 1819, the Supreme Court struck down a stiff Maryland tax on national bank notes. As Chief Justice Marshall pointed out, the people of Maryland were represented in Congress as a part of the whole, but the rest of the nation was not represented in the Maryland legislature. The national government could not be held hostage to the intense policy preferences of a political minority that happened to control a state government. Similarly, the president cannot be held hostage to the whims of a local prosecutor or trial judge, even if the motives of the state court are sound. The constitutional consequences of placing the president within the power of a state court are too severe to depend merely on good faith.

While the Constitution is silent on the president's proper relationship to the federal judiciary, it specifically makes the president accountable to Congress. As a consequence, the independent prosecutor is uniquely positioned to subpoena the president.

The independent prosecutor was created in the aftermath of Watergate to avoid another spectacle similar to the Cox firing. Since it remains doubtful that a president could be indicted before being impeached, the independent counsel's inquiries into presidential misconduct should most appropriately be seen as adjunct to the impeachment process.

It is unclear whether this is an appropriate way of pursuing impeachment inquiries, or whether a grand jury is the proper venue for acquiring evidence for a potential presidential impeachment. Nonetheless, Congress essentially uses independent counsels as preliminary investigators for possible impeachments.

In the current controversy, defenders of the Clinton administration have claimed, somewhat disingenuously, that Starr's investigation is partisan. But they also recognize that public opinion will weigh heavily on how the president should be held accountable for any misdeeds.

After all, the "character issue" did not prevent Clinton from being elected and re-elected, and–recent stock market gyrations aside–the economy does seem to be humming along nicely. With the revelation of each new indiscretion, the president's approval ratings seemed to go up.

If Clinton truly believed that Starr's investigation is a partisan witch-hunt, then he should have acted, as president, on that conviction. The president has the statutory power to dismiss Starr.

Moreover, if issued a subpoena he does not feel obligated to obey, the president should address the nation and announce his refusal to cooperate with what he considers a corrupt investigation. In doing so, the president would be acting as a high constitutional officer, rather than an evasive criminal defendant. The nature of such a challenge would make it clear that the appropriate forum for evaluating the credibility and significance of the investigation would be Congress, not the courts.

Refusing to comply with a subpoena, especially under the present circumstances, would not be a simple violation of the law. It could be an abuse of office, a "high crime and misdemeanor." If the Supreme Court were to take primary responsibility in this matter, it might tend to reduce the issue to the minimal conditions of law, to the ways in which the president is like any other citizen.

Forcing Congress to take responsibility, however, would emphasize the ways in which the president is not like any other citizen. It would both put his refusal in the proper context and allow the nation to consider what our constitutional order requires. The Constitution imposes obligations on the president, and it specifies a mechanism (impeachment) for enforcing those obligations. If an impeachment proceeding goes forward, the judiciary can only get in the way.

Oliver Wendell Holmes once said that the law must see the world from the perspective of the "bad man." Holmes made a distinction between law and morality: The bad man will only calculate the "material consequences" of his actions, and will not heed the "vaguer sanctions of conscience." To be effective, Holmes said, the law must assume that everyone is bad, a potential criminal.

Yet we expect public officials to act in a way that sustains constitutional government rather than undermines it. The Clinton administration has not understood the implications of constitutional ethics. The president and his advisers think like lawyers, and their failure to recognize the president's duties has driven the current scandal to approach the level of a constitutional crisis.

The president has adopted the perspective of the Holmesian bad man. When admitting to lying about his relationship with Monica Lewinsky, Clinton emphasized that his statements before the grand jury were "legally accurate." The president hopes to admit to wrongdoing but get off on a technicality. This is our reward for allowing the president to adopt a legalistic perspective on the Constitution.

A president captive to legalisms forces us to hem in the office of the presidency with laws. But this strategy can be fatal for a republic. Unless we demand that our leaders act in a constitutionally ethical manner, we are destined to be exploited by the next "Tricky Dick" or "Slick Willie." In addition, we lose needed flexibility if we substitute fixed rules for versatile principle. More significantly, we expect more from our elected officials than compliance with the minimum requirements of the law.

When, during his own impeachment, President Andrew Johnson sought to claim the same rights as every other citizen, the Radical Republican Benjamin Butler declared that the president has no constitutional rights. As Butler emphasized, the overwhelming feature of the presidency is not his "rights" as an individual but his responsibilities as an officeholder. We should be clear on what they are.

We do not expect the president to think only like a lawyer. Clinton's bobbing and weaving in response to questioning, his parsing of sentences to their legally minimal meaning, may be tolerable as a matter of law, but it sets a dangerous constitutional precedent. The issue is not presidential perjury but abuse of trust. Something important is lost if we collapse that distinction.

We would be making the same mistake as the president, however, if we adopted his legalistic perspective. Our reaction to President Clinton's failings should not be to further narrow the inquiry into his presidency and create more rules that he and future presidents must follow.

The president is not above the law, but he has constitutional responsibilities that cannot be reduced to mere legalisms. Constitutional ethics are not the same as private legal obligations. The president should act presidential.

Keith E. Whittington ([e-mail]) is assistant professor of politics at Princeton University and author of Constitutional Construction: Divided Powers and Constitutional Meaning, to be published by Harvard University Press in the spring.