Eight justices ruled in United States v. Nixon that Richard Nixon had to turn over the Oval Office tapes during the Watergate scandal. (“Neither the doctrine of separation of powers,” wrote the court, “nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”)
None of those justices were still on the Supreme Court in 1997 when the court ruled 9-0 in Clinton v. Jones that President Bill Clinton could not avoid Paula Jones’ civil suit (nor the deposition it entailed) while in office. Independent counsel Kenneth Starr later issued a subpoena for Clinton to testify; Clinton thereupon submitted to an interview. Four of the justices who held for Jones — Justices Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer — remain on the court today. Recall also that Chief Justice John Marshall held that President Thomas Jefferson would have to submit to a subpoena duces tecum to appear in the Aaron Burr trial.
In other words, 18 justices, four of whom remain on the court, have ruled in one form or another that presidents are not above the law or immune to ordinary legal processes. No president has prevailed in the argument that he and documents in his control are exempt from a subpoena. Recently in the Summer Zervos case, a New York state judge, citing Jones, held that President Donald Trump was not immune from that defamation suit. He therefore will be compelled to sit for a deposition if the case proceeds.
As for the remaining five justices on the court, we find it impossible to believe all would rule in Trump’s favor if he tried to evade a subpoena to testify. To the contrary, Chief Justice John Roberts (a court institutionalist) and Justices Sonia Sotomayor and Elena Kagan almost certainly would rule against Trump. Especially in light of Trump’s constant assaults on the legitimacy of the courts, justices would be exceptionally mindful of their role in checking the executive branch and preserving the rule of law.
Given that four of the current justices held that Clinton could be compelled to testify in a civil suit (of much less consequence than a criminal case), it defies logic to think those four justices would shield Trump from a subpoena in a far-reaching criminal case. How could it be that in relatively small matters of civil liability (Jones, Zervos) a president could be compelled to attend a deposition, but in a criminal matter Trump could thumb his nose at the special counsel?
As former U.S. attorney Renato Mariotti tells me, “Given that the Supreme Court forced Nixon to comply with a subpoena for records and Clinton to face a civil lawsuit, it’s very unlikely that Trump can fight the subpoena in court. He may take the Fifth, which is likely the only way he can avoid testifying.”
So why in the world would the Trump legal brain trust, most recently Rudy Giuliani, suggest Trump is not subject to subpoena? Trump’s lawyers might be ignorant as to the precedent and blind to the composition of the current court, but even these attorneys should know their chance of prevailing is tiny. They might be trying to mollify an irrational, unhinged client. They might also be doing what Trump does so often — issue preposterous, empty threats.
Alternatively, they might actually be contemplating defying a subpoena and the Supreme Court, thereby gaining the distinction as the most lawless administration in history. (I do find it hard to believe that Emmet Flood, who apparently has signed up to join this crew, would go along with such an attack on the foundation of our democracy.)
Laurence Tribe, constitutional scholar and co-author of “To End a Presidency: The Power of Impeachment,” explains, “Rudy Giuliani’s casual comment that, being president, Mr. Trump has no obligation to comply with a judicially approved subpoena lacked any legal basis and must have been a PR comment addressed to uninformed members of the public rather than a legal remark addressed to the judges who would ultimately rule on a claim of sweeping presidential immunity to legal process. No American president has ever defied such a subpoena.” He agrees, “The core principle that not even the president stands above the law is so central to our democracy, to the rule of law and to the role of our independent judiciary that I would expect all or nearly all of the current justices to apply those precedents to Mr. Trump.”
While he won’t predict this is an open-and-shut case, he does say, “My reason for predicting that even today’s highly conservative Supreme Court would probably rule against Mr. Trump in a properly framed case of this kind draws in part from constitutional theory but in part, too, from the court’s practical instinct for self-preservation, and for what I believe would be Chief Justice Roberts’ sense of history and of the need to preserve the judicial branch as the ultimate check against a renegade president, one accountable to no law.”
The only reason Trump’s team would publicly voice such an incendiary threat is because it is confident that compliant Republicans will not raise a fuss and its state TV (Fox News) will treat this as ho-hum. It behooves every candidate on the ballot in November to draw a clear line — defiance of the Supreme Court will be grounds for impeachment, thereby forcing Trump’s defenders to disclose their own views. It is also incumbent on the real news media to explain how truly reckless this step is, and why it would constitute a true constitutional crisis. Rather than run a series of process stories (Isn’t he clever! Is what he said true?), the press must inform readers what is at stake here: nothing less than the survival of our constitutional system.
Jennifer Rubin writes the Right Turn blog for The Washington Post, offering reported opinion from a center-right perspective.