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Jewish World Review / July 29, 1998 / 6 Menachem-Av, 5758

Paul Greenberg

A subpoena for the president:
so what else is new?

THE NOTION IS ABROAD that some shocking legal novelty is involved in issuing a subpoena for a citizen of the United States who also happens to be president of said states. It's the shock that should surprise, not the subpoena.

With the 'endgame' near, Bubba better make sure he can swim.

Can a president of the United States be subpoenaed? To quote the first justice to approve the first such subpoena, John Marshall, this "is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest."

At the time, the greatest of our chief justices was delivering the greatest of his decisions -- Marbury v. Madison -- but the principle involved in the current brouhaha is much the same: This is a government of laws, not men. If a president can ignore a subpoena or put himself beyond the reach of the law in some other way, he will have confused the sovereignty of the people with his own, the Constitution with a grant of personal immunity.

It was John Marshall, presiding over the treason trial of Aaron Burr in 1807, early in the Republic's all too eventful history, who agreed to issue a subpoena duces tecum -- for the personal testimony and relevant documents -- of one Thomas Jefferson, material witness and president of the United States.

Mr. Jefferson was furious -- not just at being subpoenaed, but over the whole course of American law being charted by his fellow Virginian. Our third president might have been any defendant who had ever lost a round in federal court, or for that matter an occupant of the current White House talking about Kenneth Starr. Those inconvenienced by the law, even if they are sworn to faithfully execute it, tend to see in its operation only the personal malice of some particular judge or prosecutor. For our passions, prejudices and politics tend to determine our law.

Certainly there was no love lost between Messrs. Jefferson and Marshall. Thomas Jefferson was a Republican, or what today we would call a Democrat; his party still traces its ideological origins to Jefferson and Jackson. Justice Marshall was an old Federalist, the party of the Constitution, and a man sublimely confident that ideas would prove more consequential than mere power and position, particularly if they were his ideas. For he would make them law.

Mister Marshall, he dead. But he ain't gone. Since his time, a number of presidents besides Jefferson have bowed to the courts and agreed to be deposed: Monroe, Grant, Nixon, Ford and Carter all provided evidence in criminal proceedings. President Reagan gave answers in writing when questions arose in the Iran-Contra investigation, and his vice president, George Bush, was deposed.

Yet pundits and pols act as if a subpoena for the president were something new under the American sun. They speak in a tense that can only be called the semantic present: Innocent of the history that is the key to judgment, they cite constitutional chapter and verse without recalling, or perhaps even knowing, that the basis of the subpoena power has been tested and re-tested since John Marshall's time.

The usual pettifoggers invoke various distinctions without a difference in this case (grand juries vs. petty juries, personal testimony as opposed to documents, civil vs. criminal law) and appear shocked -- shocked! -- to learn that grand juries question witnesses without their lawyers at their side.

Contrary to appearances, reason still flourishes in the law. It was, lest we forget, a unanimous decision of the Supreme Court that upheld a subpoena for Richard Nixon's tapes. And a unanimous decision of this current court held that a president was not above the law but could be sued like any other citizen. Just the other day, a contemporary legal scholar -- John Loo of Berkeley's law school -- went to the heart and gizzard of this little firestorm over a subpoena for the president: "A president determined to fulfill his constitutional duty to faithfully execute the law, and conscious of the need for compromise and stability in our political system, should testify voluntarily rather than force a court to issue a subpoena against him."

Instead, once again, William Jefferson Clinton twists and turns, delays and detours, inventing one privilege after another, one excuse after another, for not telling the courts -- and the American people -- more rather than less, sooner rather than later.

Bill Clinton continues to act like a suspect surrounded by lawyers rather than a leader who need only tell the truth. A great leader would exult in the truth, knowing it would set him free.