Tuesday, May 08, 2018

Normalcy and the Presidential Subpoena

Deborah Pearlstein

While predicting what is likely to come next in the unfolding legal drama surrounding the President seems something of a fool’s errand, the prospect that Special Counsel Robert Mueller might subpoena the President to compel him to testify before a federal grand jury now seems at least plausible enough to have prompted more than a little commentary on the constitutionality of such a move.  Most views cluster around the conclusion I tend to share: the question whether the President can be compelled to testify was formally left open by United States v. Nixon, but the considerations that led the Nixon Court to conclude that President could be compelled to turn over audio tapes relevant to a federal criminal prosecution tend to favor the conclusion (as do subsequent cases like Clinton v. Jones) that Trump could, modulo particular claims of executive privilege about particular lines of inquiry, be compelled to testify here.

Princeton historian Keith Whittington, however, suggests courts might well (and, I take him to argue, should) take a different view.  Whittington emphasizes “two considerations that should weigh on the minds of the justices and that might give them pause before extending the logic of United States v. Nixon and Clinton v. Jones.” In brief, Whittington argues: (1) that commanding a President to appear before a court and provide testimony “intrudes on the core functioning of a coordinate branch” in a way that commanding the President to turn over documents or even recordings does not; and (2) the courts should be reluctant to play (borrowing Mark Tushnet’s phrase) “constitutional hardball” against the political branches in general, and most especially here, where they face a President who has given them every reason to take seriously “the possibility that Trump might choose to take the extraordinary step of ignoring a judicial order, especially one that threatened his core personal interests.”

Although Whittington is surely right to underscore the high stakes – personal and constitutional – attending any actual fight over presidential testimony, neither of these reasons strikes me as adequate grounds for any contemporary court to shy away from enforcing an appropriately limited subpoena.

The first proposition – that there is a difference between presidential testimony and presidential tapes – is true enough as far as it goes.  But the constitutional significance of this distinction, if one exists, is far from apparent.  Whittington’s primary argument here seems to be a functional one: requiring live testimony is more likely to interfere with the President’s ability to carry out core tasks than handing over already-recorded tapes did because commanding the President to appear somewhere particular at some particular time somehow undermines the President’s ability to act with Hamiltonian “secrecy and dispatch,” if such action should become necessary.  But classic functional arguments like these seem hard to credit in any practical sense today. In an age when there is a vast technical support apparatus operating round the clock devoted exclusively to ensuring that the President’s physical location at any given moment anywhere in the world is irrelevant to his ability to carry out his job, that the President happens to be out of the Oval Office answering questions when a crisis arises should hardly deprive him of the ability to act with every advantage of “secrecy and dispatch” Hamilton might remotely have conceived.  

Neither does it seem plausible that any subpoena-enforcing court would decline to attend to the many pragmatic cautions the Nixon and Clinton Courts emphasized in subjecting presidents to judicial process – deferring to the President’s scheduling and travel demands and of course any last minute exigencies or job-related interruptions, taking care to avoid topics properly subject to executive privilege, etc.  There is no conceivable scenario in which a court declines to honor a presidential request to, say, postpone a scheduled grand jury appearance for some reasonable interval because the President has some good faith claim that unavoidable official business requires his personal attention. Such accommodation is not, as Whittington suggests, a “hollow[ing] out” of the subpoena power. It is exactly the kind of unremarkable compromise of convenience that keeps a modern government of co-equal branches with profoundly overlapping responsibilities functional in the ordinary course. 

The more important concern Whittington raises is the judiciary’s capacity to play – and win – a game of constitutional hardball with the President of the United States.  As a general matter, it seems strange to imagine that the modern Court would even contemplate a return to embrace the “passive-aggressive” virtues as exercised by the Court of John Marshall, which Whittington recalls, when the U.S. Presidency and Supreme Court were in their institutional infancy.  All apart from the Court’s existing familiarity with compelling a sitting President to turn over evidence entirely against his interest (with no guarantee that Republicans then in Congress would rally to support it), this is a Court that has in the past 50 years alone, just for example, decided a presidential election; rejected a presidential effort to enjoin the publication of a classified study of an ongoing war; and (a case now particularly timely again) insisted that core international law prohibitions apply even to the non-traditional U.S. conflict against terrorist groups (a decision that drove the Bush Administration CIA to race to transfer its remaining ‘black site’ interrogation prisoners to more legally compliant facilities).  This is not a Court, on either end of the bench, accustomed to passivity on matters it determines to be of consequence.  It likewise is a Court – and a country – accustomed to having even its most consequential rulings followed by even our most contemporary presidents.

Certainly aware of this reality, Whittington’s argument hinges on the notion that this President, uniquely likely among modern presidents to disobey a court order, should lead the Court to shift its institutional calculus.  The argument is hardly intuitive – amounting to a claim that the best way to deal with a president who has displayed singular scorn for U.S. courts and law enforcement institutions is to trim the sails of U.S. courts and law enforcement institutions.  The implication that the Court is more likely to suffer than Trump from losing a game of constitutional chicken is likewise inconsistent with what public polling might predict. (Polls continue to show, for example, significant majority public support for the Mueller investigation; and public crediting of the account of former FBI Director James Comey over Trump. Perhaps more important, polls continue to show public trust in the judiciary a great deal higher than public trust in the executive (or Congress).) Indeed, there is at least as much cause to imagine the Court’s institutional credibility will suffer more if it fails to demand Trump’s (relevant, limited) testimony than if it insists upon it.  For far from the conundrum courts face when asked to pretend, for the sake of preserving their own institutional norms and customs, that an abnormal president is normal (see Dahlia Lithwick here, Sandy and Mark here), the contemplated subpoena showdown presents the far less threatening circumstance in which the courts can preserve their own institutional customs, without pretense, by treating an abnormal president normally.  In the age post-Nixon and Clinton, that is all that is required here.

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