How do Presidents React to Presidential Subpoenas?

Comparing the reactions from Presidents Jefferson and Trump.

|The Volokh Conspiracy |

Two centuries apart, two presidents were subjected to presidential subpoenas. During the trials of Aaron Burr, Chief Justice Marshall directed subpoenas at President Jefferson. In response, President Jefferson gave very specific instructions to his U.S. Attorney, George Hay. Here is an excerpt from my new essay:

The President gave his U.S. Attorney a warning: if the Chief Justice "contrary to expectation, proceed to issue any process which should involve any act of force to be committed on the persons of the [Executive] or heads of [departments], I must desire you to give me instant notice." In such a case, the U.S. Attorney should "advise the [U.S.] marshal on [the Chief Justice's] conduct, as he will be critically placed between us." Jefferson wrote that the "safest way" for the marshal "will be to take no part in the exercise of any act of force ordered in this case." Why? "[T]he powers given to the [Executive] by the [Constitution] are sufficient to protect the other branches from judiciary usurpation of preeminence, & every individual also from judiciary vengeance." Jefferson continued that "the marshal may be assured of its effective exercise to cover him." After issuing this threat, Jefferson expressed his "hope . . . that the discretion of the C. J. will suffer this question to lie over for the present." Indeed, at the "ensuing session of the legislature," Jefferson noted, Congress should consider legislation that would "giv[e] to individuals the benefit of the testimony of the [Executive] functionaries in proper cases, without breaking up the government." Jefferson expressed his hope that Marshall would not "assume to divide his court and procure a truce at [last] in as critical a conjuncture."

Later, Jefferson wrote:

He was indignant at Marshall: "these whole proceedings will be laid before Congress that they may decide, whether the defect has been in the evidence of guilt, or in the law, or in the application of the law, and that they may provide the proper remedy for the past & the future." In other words, the record should be preserved to form the basis of articles of impeachment against the Chief Justice. Despite his bluster, there is no record that Jefferson actually sought to impeach Marshall based on the Burr case.

Last week, President Trump took to Twitter in response to Trump v. Vance. He tweeted:

The New York Times reported that President Trump felt betrayed that his appointees voted against him.

Like his predecessors, Mr. Trump was unhappy with the rulings, although aides sought to calm him by assuring him that he could continue fighting in lower courts. But he expressed deep anger at Justices Gorsuch and Kavanaugh, seeing their votes as a betrayal, according to a person familiar with his reaction.

But the two justices only followed in the footsteps of their predecessors by rejecting the president who put them on the court. While each of them has generally sided with Mr. Trump since taking office, in this case they drew a line. Neither is personally close to Mr. Trump nor is either thought to be much of an admirer of the president, so some saw the decision as a way to distance themselves.

Lee Epstein described Gorsuch and Kavanaugh, plus the Chief, as the Court's "soft middle."

The separate concurrence in Vance from Justices Kavanaugh and Gorsuch warrants a more careful study. In due course.


NEXT: Judge Allows Professors' Libel Case Against Ex-Students to Go Forward

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  1. Short Josh Blackman:

    “Donald Trump is just like Thomas Jefferson, a President he couldn’t name is you spotted him the ‘Banged Sally Hemmings because he was a slaveowner.'”

    Shortest Josh Blackman:

    “No prinziples; kan haz judgethingy and chhezburgerz?”

    1. You’re a stupid troll.

      1. Michael W. Towns got his feelies hurt!


        1. “Michael W. Towns got his feelies hurt!”

          AND he accurately described you.

    2. Note, Jefferson banged Hemings first when she was a free woman in France. She chose to come back to VA with him, she could have walked away.

      1. She was 14, m_k. Jefferson was 44.

        Dunno if you should be arguing consent.

        1. 12 was the age of consent in England at the time. Looks like the first French consent law was 11 in 1791.

          See cited in wikipedia

        2. Not arguing consent, but rather slave status. Moreover, she was getting French lessons paid for by Jefferson, so she could have integrated into French society.

          1. We don’t even know when Jefferson first raped Hemings. If it were before the Paris trip, it isn’t like he would have documented it.

            We do know he raped her though, and her rapist got her pregnant. It is outrageous that people defend that.

            1. It wasn’t rape if it was in France, because it was above the age of consent. If it was in America, it was technically rape, as a slave cannot consent, per se. But that standard makes every, say, Roman, who ever visited a brothel which often had slaves, a rapist. Thus, it is a questionable standard.

              As best we can conjecture, that after Jefferson’s love affair in France soured after a broken arm, he may have consoled himself with Hemmings. Again we don’t even have 100% proof that it was Jefferson, as DNA evidence is inconclusive, and it could very well have been one of his relatives.

              1. technically rape, as a slave cannot consent, per se.

                Jesus, m_k. Use more weasel words to defend the indefensible, why don’t you.

                1. Jesus Sarcastro, did you see the next sentence after the supposed “weasel words.”

                  1. Where you compared American chatel slavery to Roman slavery? I did, but that kind of ignorance isn’t the same as defending rape.

                    1. Americans took better care of their slaves than the Romans, I suspect.

                      Unless we are comfortable calling the Romans at the brothels in Pompey rapists, then we should be careful with applying 21st century standards to earlier periods of time, because the situations are identical. Look, if you went into an 18th Century house today, would you say that it was a bad house because it didn’t have wifi, central air, and storm windows?

                    2. Roman slavery wasn’t a picnic, but it was not the same.

                      Also Roman ideas of consent were not anywhere near our own.

                      But Roman slaves had vastly more rights, autonomy, and mobility than American slaves. It’s a naiive comparison.
                      I know this because in my youth I made the comparison and was set straight.

                      More generally, Presentism is something to keep track of. But it’s not a get out of jail free card. And raping and impregnating your slaves is something I’m pretty fine with condemns Jefferson objectively. And subjectively, given his contemporaries managed to avoid doing that.

                    3. Naive, no, rather you don’t want to make a one-to-one comparison for a situation that is entirely analogous because it’s uncomfortable to call the majority of the male Roman population rapists (since there was frequent brothel visiting), whereas it’s easy to call Jefferson a rapist by those standards. Would you call, say, an Ottoman sultan from the 18th century, who forced women into their harems, a rapist, with such blithe unconcern?

                      Essentially, I’ve taken that “Jefferson was a rapist” viewpoint to it’s logical extension, showing that it is rather silly.

                      Jefferson’s contemporaries rather worried that a white women would be impregnated by a black man. And impregnating slaves was quite common, more than you think. The master’s wife was just supposed to assume that those light skinned kids just came from somewhere else. It’s how we got, for example, Booker T. Washington, who’s biological father was a white man from some neighboring plantation. Which is why, slave status was passed down via motherhood.

                    4. So you invoked Roman slavery only to talk about presentism?

                      You go too far with your presentism, letting everyone off the hook. No slaveholders are immoral. No human sacrifice was horrific. I guess we gotta be cool with child soldiers nowadays, being acceptable in their societies.

                      You indulge in the post-modernist post-morality world the right accuses the left of having.

                      Jefferson was my least favorite Foudner, but was nevertheless an intellectual giant whose ideas of liberty continue to blaze a path for our nation. Plus the Louisiana Purchase. He also raped and impregnated his slave.

                      I can handle having a Founder who was not a paragon of virtue. Can you?

                    5. I compared and contrasted Roman slavery with 18th century slavery for the specific issue of sexual consent. Please try to stay on topic. That seems to be an issue with you.

                      And sure, Jefferson (likely) impregnated Sally Hemmings, who may or may not have been a willing participate in the states, but willing enough to come back from France with him where she was a free woman when it (likely) first happened. That’s not at issue, I’ve never tried to say that such a thing didn’t happen.

                      BTW, the correct term is whiggish history, not presentism. You’re being whiggish, indeed, and accusing me of using post-modern arguments is projection methinks. My point, since I must repeat myself, is that using your standards, most Roman males were rapists, and thus if having sex with slaves making one a “rapist” than it is a poor standard. That’s okay if you’re not willing to say it, because I hardly expect you to be intellectually consistent on anything.

                      And please, Jefferson was a flawed man, as we all are. Did I ever deny that? Once again, you’re making what you want to argue against as my argument, rather than what I’m actually saying. My favorite founder personally is John Adams, a flawed man who was to prideful and who was to deferential to central authority, oddly enough, for modern tastes.

              2. “It wasn’t rape if it was in France, because it was above the age of consent.”

                You skipped a step. IF there was consent, she was legally able to give it.

  2. I can understand that he doesn’t like Democratic prosecutors engaging in lawfare against him, but, really, the decision was legally correct none the less. There’s just no constitutional basis for his claim of immunity.

    It’s different with Congress, because Congress’s subpoena power is statutory, not constitutional. And, anyway, it wasn’t “Congress” issuing the subpoena, it was just a few House members. And it’s questionable when a few members claim to be exercising Congress’s prerogatives as a body.

    Things might very well have gone differently in that case had Congress actually voted to issue the subpoenas as a body, pursuant to a vote in both chambers.

    1. I dunno. Democrats gleefully running around about sending tax info to NY so the state can prosecute him in case he pardons himself.

      Mmmaybe. But is it severed from picking him out for selected, politically-motivated prosecution?

      1. “Nobody is above the law” also applies to those wrenching the handles of government investigation against political enemies.

        1. Trump and Barr have had ages to bring a case. So far just bloviating.

        2. Curious, can you tell me if any of the prosecutors who handled the Senator Ted Stevens trials were punished for their misconduct?

          1. IIRC, one of them committed suicide after it was exposed. Other than that, no, no particular punishment. Just got reassigned.

      2. Democrats may be gleeful, but that’s irrelevant to the question of whether there actually is anything to investigate. My bet is that there is. And if there is, then Trump doesn’t get a free pass because his prosecutors are enjoying themselves.

    2. because Congress’s subpoena power is statutory, not constitutional

      Is it, though? I mean, I’m sure there’s a statute, but like Roberts said in Trump v. Mazars,

      each House has power “to secure needed information”
      in order to legislate. McGrain v. Daugherty, 273 U. S. 135,
      161 (1927). This “power of inquiry—with process to enforce
      it—is an essential and appropriate auxiliary to the legislative function.” Id., at 174. Without information, Congress
      would be shooting in the dark, unable to legislate “wisely or
      effectively.” Id., at 175. The congressional power to obtain
      information is “broad” and “indispensable.” Watkins v.
      United States, 354 U. S. 178, 187, 215 (1957). It encompasses inquiries into the administration of existing laws,
      studies of proposed laws, and “surveys of defects in our social, economic or political system for the purpose of enabling
      the Congress to remedy them.” Id., at 187.

      So presumably the subpoena power would exist with or without a statutory basis, although without a statute there might be a bit more argument about its scop.

  3. “rejecting the president who put them on the court”

    Kavanaugh would not be on the court if Trump was a normal politician. Every GOP president going back to maybe Coolidge would have withdrawn his nomination. Maybe he ought to have recalled that, especially since the decision would have been unchanged.

    Truman picked Fred Vinson, Obama picked Kagan. Its possible and acceptable to select people with personal loyalty. The next GOP president ought to remember.

    1. Kavanaugh would not be on the court if Trump was a normal politician. Every GOP president going back to maybe Coolidge would have withdrawn his nomination.

      If there was any corroborating evidence, Kavanaugh wouldn’t have been confirmed. As is, I’ve yet to see or hear of any. Can you provide any link to information on evidence that wasn’t solely from his accusers testimony?

      1. What I think the issue, is that other squish GOPers, crept for in the modern era maybe Ike or Reagan, would have caved to the political pressure regardless of actual evidence.

        1. “maybe … Reagan”

          Douglas Ginsburg smoked some pot years prior to appointment. Meekly withdrawn.

          1. Different time….public attitudes toward weed in the 80’s was very different than today.

      2. “Can you provide any link to information on evidence that wasn’t solely from his accusers testimony?”

        No, but its not my point.

        The heat would have made a normal pol withdraw it. See Douglas Ginsburg for example.

        1. Or Clarence Thomas?

  4. Contrasts between Jefferson and Trump:

    1. One was knowledgeable about the law (and actually wrote a good deal of it), the other isn’t.

    2. One was an adult, one is a child.

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