How do Presidents React to Presidential Subpoenas?

Comparing the reactions from Presidents Jefferson and Trump.


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.