Presidents and Subpoenas

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PRESIDENTS AND SUBPOENAS. Courts have the general power to issue subpoenas compelling individuals to appear before them. Courts can also compel those served with subpoenas to produce certain materials relevant to a pending trial. Early in American history, courts became the forum in which it was decided whether the president of the United States would be exempt from such court orders. In the 1800 federal Circuit Court case of United States v. Cooper, Thomas Cooper, who had published a number of articles highly critical of President John Adams, was charged with violating the Sedition Act of 1798. Cooper, a scientist and lawyer who had recently come to the United States from England and who represented himself in court, asked one of the presiding judges, United States Supreme Court Justice Samuel Chase, to subpoena President Adams so that the president could answer for what he claimed were the injustices of the Sedition Act. Justice Chase refused Cooper's request to subpoena the president, but went on to charge the jury and said, "Now, gentlemen, the motives of the president, in his official capacity, are not a subject of inquiry with you. Shall we say to the president, you are not fit for the government of this country?" Justice Chase did, however, agree to Cooper's requests to subpoena members of Congress. Cooper was nevertheless convicted, paid a large fine, and spent six months in prison. This case appears to have been the first in which a president could possibly have been subpoenaed, and it was determined that America's chief executive is generally immune from such court orders.

This issue was revisited in the case of United States v. Burr (1807). Chief Justice John Marshall presided over this case, which was heard in the Circuit Court of the United States. Marshall allowed a subpoena duces tecum to be issued for certain documents in the possession of President Thomas Jefferson that were relevant to the proceedings against Burr. Jefferson responded cordially, referring in repeated letters to the "request" of the court, and did provide certain documents, but refused to produce other relevant materials or to appear in person. Jefferson claimed that the pressing duties of the presidency made it impossible for him to travel outside the seat of government in Washington to attend trials. Jefferson wrote that, "To comply with such calls would leave the nation without an executive branch, whose agency nevertheless is understood to be so constantly necessary that it is the sole branch which the constitution requires to be always in function." This set a longstanding precedent that a sitting president of the United States could not be forced to appear in court or produce materials relevant to a trial through the use of a subpoena. Based on this principle, presidents also refused to comply with requests from Congress to testify before various committees. The practice came to be known as "claiming executive privilege," although such a privilege is nowhere explicitly stated in the Constitution.

The issue lay largely dormant until the nation arrived at the constitutional crisis that resulted from the Watergate affair and President Richard M. Nixon's involvement in that and other activities. Testimony before the Senate about the 17 June 1972 break-in at the Democratic National Committee headquarters, located in the Watergate Office Building in Washington, D.C., made it clear that there were tape recordings made in the Oval Office that were relevant to the congressional investigation. Congressional committees and two special prosecutors demanded that President Nixon turn over the tapes. Subpoenas were then issued demanding, among other things, that Nixon personally testify and give the tapes in question to the federal District Court prosecuting the cases against those directly involved with the burglary and the subsequent cover-up. Following in Jefferson's steps in the Burr case, Nixon complied to an extent with these subpoenas, releasing some materials that had clearly been altered and edited, but claiming that other materials were protected by executive privilege.

In United States v. Nixon (1974), the Supreme Court of the United States, citing many landmark cases, including Chief Justice Marshall's opinions Marbury v. Madison (1803)and United States v. Burr, said that it was incumbent on the High Court to balance between the president's need for confidentiality in executing his constitutional duties, on the one hand, and "the fundamental demands of due process of law in the fair administration of criminal justice," on the other. The Court's unanimous opinion delivered by Chief Justice Warren E. Burger was careful to give great credence to the president's need for complete candor and objectivity from his advisors. The justices also recognized the need for a great degree of confidentiality for the internal deliberations of the executive branch of government. Chief Justice Burger agreed that, if military or diplomatic secrets were at stake, the Court might reach a different conclusion. However, given that President Nixon's claims were based on a blanket statement of executive privilege without claiming that any state secrets were at stake, the constitutional duty of the courts is to guarantee due process of law, something that Nixon's actions were gravely impairing, according to the Court. The justices ruled that President Nixon had to comply with the subpoena duces tecum issued by Chief Judge John J. Sirica of the United States District Court for the District of Columbia. Nixon immediately prepared to turn over the subpoenaed materials to Chief Judge Sirica.

Presidents since Nixon have continued to claim that the special place the presidency holds under America's constitutional system demands that much of its internal deliberations remain secret and privileged. When faced with investigations, special prosecutors, subpoenas, and impeachment proceedings, President William J. Clinton, for example, claimed that much of what went on in the Oval Office was protected by executive privilege and executive immunity, and that he and his aides should not have to respond to subpoenas. As was the case with President Nixon, President Clinton eventually accepted his and his office's place under the rule of law. Since United States v. Nixon, executive branch claims of immunity from the normal processes of the American legal system have been tempered by the fact that the constitutional demands of due process of law and justice are likely to outweigh claims of executive immunity from subpoenas.


Ball, Howard. "We Have a duty": The Supreme Court and the Watergate Tapes Litigation. New York: Greenwood Press, 1990.

Berger, Raoul. Executive Privilege: A Constitutional Myth. Cambridge, Mass.: Harvard University Press, 1974.

Melanson, Philip H. Secrecy Wars: National Security, Privacy, and the Public's Right to Know. Washington, D.C.: Brassey's, 2001.

Moynihan, Daniel P. Secrecy: The American Experience. New Haven, Conn.: Yale University Press, 1998.

Rozell, Mark J. Executive Privilege: The Dilemma of Secrecy and Democratic Accountability. Baltimore: Johns Hopkins University Press, 1994.

Akiba J.Covitz

Esa LianneSferra

Meredith L.Stewart

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Presidents and Subpoenas

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