A PRESIDENTIAL SUBPOENA
July 27, 1998
A move by Ken Starr to subpoena President Clinton creates a stir in Washington. Could this lead to a constitutional showdown? After a background report with The Washington Post's Ruth Marcus, Jim Lehrer leads a discussion on the legal ramifications of Starr's actions.
A RealAudio version of this segment is available.
July 21, 1998:
A roundtable discussion on Chief Justice Rehnquist's decision not to interfere with the subpoenas of secret service agents.
July 16, 1998:
The Clinton administration appeals to Chief Justice Rehnquist to keep secret service agents from testifying before the Starr grand jury.
July 15, 1998:
Can the Justice Dept. force secret service agents to testify?
July 4, 1998:
The Supreme Court refuses to hear from Kenneth Starr.
July 1, 1998:
A report on the question of executive privilege and the Starr investigation.
June 29, 1998:
The Supreme Court upholds attorney-client privilege in the Vincent Foster case.
June 8, 1998:
The Supreme Court hears arguments in the Vincent Foster attorney-client privilege case.
June 4, 1998:
The Supreme Court refuses to expedite matters in the Ken Starr investigation.
May 1, 1998:
Dan Balz discusses the new charges against former Justice Department official Webster Hubbell.
April 16, 1998:
Ken Starr discusses his investigation with the press.
April 13, 1998:
A report on Ken Starr's subpoena of two Washington bookstores.
April 1, 1998:
A judge dismisses Paula Jones' case against the president.
March 3, 1998:
President Clinton's friend and confidant, Vernon Jordan, testified before the grand jury.
February 27, 1998:
Shields and Gigot discuss criticism of Starr's investigation .
February 26, 1998:
First Amendment implications of the Starr investigation.
February 24, 1998:
Clinton aide Sidney Blumenthal is called before the grand jury.
February 18, 1998:
Washington Post reporter Dan Balz discusses presidential adviser Bruce Lindsey's testimony before the grand jury.
February 6, 1998:
Perspectives on the Starr investigation from beyond the beltway.
January 26, 1998:
Experts debate the role of the independent counsel.
January 22, 1998:
Presidential historians and experts put the brewing crisis in perspective.
January 21, 1998:
President Clinton responds to charges that he may have had an affair with a former White House intern.
Browse the NewsHour's coverage of the Starr investigation .
The Washingtonpost.com's library of legal documents in the Starr investigation.
JIM LEHRER: Now the perspectives of three law professors. Paul Campos is director of the Byron White Center for American Constitutional Study at the University of Colorado. He's the author of "Jurist Mania." Doug Kmiec teaches constitutional law at the University of Notre Dame but is currently a visiting professor at Pepperdine University. He served as a legal counsel for former President Ronald Reagan. And Ken Gormley is a professor of constitutional law at Duquesne University. He is the author of "Archibald Cox, Conscience of a Nation." Mr. Campos, first, as a matter of history and law, are there any precedents for what the lawyers on both sides of this are now trying to negotiate and work out?
PAUL CAMPOS, University of Colorado: Well, there aren't really any direct precedents. No sitting president of the United States has ever been compelled to appear before a criminal grand jury before. The closest precedent would be the Nixon case, which involved the special prosecutor's demand for the White House tapes, not for testimony, but for evidence, and in his proceedings, and that followed a somewhat similar history to this one. And there was a drawn out negotiation period that eventually broke down and led to the Nixon decision, which compelled President Nixon to produce that evidence.
JIM LEHRER: Now, a subpoena, define what a subpoena is. It's a legal order-is it a legal order as such? It says you must do something by a certain day in the following way, is that the way it should be read?
PAUL CAMPOS: Yes. It essentially says you have to show up at such and such a day at such and such a place to participate in the legal proceedings that are going on there. And I don't know the details of the one that was served on President Clinton, but I'm sure it contained something like that.
JIM LEHRER: All right. Now, Mr. Kmiec, there are alternatives, as Ruth Marcus just reported, alternatives to that being discussed, in other words, alternatives to the President showing up and testifying like any other witness. Let's go through some of those. For instance, for him to do it, do the same-do testimony away from the grand jury room, where the grand jury is present or otherwise, to do it on videotape or any of these other things, is there anything in the law that would prohibit those kinds of things from happening?
Must the President testify in person?
DOUGLAS KMIEC, University of Notre Dame Lame School: Well, there's nothing in the law that would prohibit them from happening, other than the long-standing tradition that every grand jury is entitled to receive the witness's testimony and that witnesses testify in front of the grand jury without counsel. So there's a long-standing tradition of treating everyone alike, and if the President is not going to be treated in that manner, it's going to be a matter of great exception and special dispensation.
And Paul Campos mentioned a minute ago some of the history. One of the interesting historical cases is United States Vs. Burr, a treason trial where Jefferson received a subpoena to provide documents in the Aaron Burr trial, and one of the things that John Marshall said in the context of that was this is a rule of law, and if the President is going to be given special privileges, then it's going to be a rule of privilege, and that's something to be avoided.
JIM LEHRER: Do you happen to know, Professor Kmiec, whether there has been this kind of exception made in a case like this-maybe not involving the President but where there was vital evidence that a prosecutor wanted from a particular witness and the special arrangements were made short of the witness going before the grand jury?
A special procedure for the president?
DOUGLAS KMIEC: Oh, certainly. And we have that, of course, already in the Clinton matter. President Clinton has testified twice, I believe, in the Whitewater matter by videotape. He gave an affidavit in the Jones trial, which was a civil proceeding, and in the Reagan administration, when Admiral Poindexter was being tried for some of the matters regarding Iran-Contra, President Reagan was allowed to give that testimony by videotape. But I think, Jim, the important aspect there was that there was a concern in the Iran-Contra question as to whether or not national security matters would be disclosed in the context of the testimony. And so it made sense to put the testimony on videotape because it allowed for the protection of that presidential prerogative.
One of the difficulties here, as Ruth Marcus very well reported, is that the President has, by and large, exhausted all of his traditional privileges, executive privilege, attorney/client privilege. The court turned down flat the Secret Service privilege. And so there really isn't a strong case to say that there's any reason to create a special procedure. And there's every reason to say that the grand jury ought to be able to see the president face to face, to ask him questions like they would ask anyone else who was the target of an investigation.
JIM LEHRER: Professor Gormley, do you see it the same way, no reason to create a special procedure?
KENNETH GORMLEY, Duquesne University Law School: Let me just say this, Jim, that I think this is much different than prior cases, and I'm not sure it's at all clear that President Clinton must appear in front of this grand jury. In the Watergate case, for instance, as was pointed out, that involved the subpoena of documents, much different than requiring a president to actually show up. And this is a very big constitutional issue.
It's never been held by the Supreme Court that a sitting president must appear at a grand jury proceeding, and so President Clinton has the same ability to say to the court thank you very much, I've received a subpoena, but I don't think you have the power to do that, as the court would have to say to him if they directed-if he directed them to cease the proceedings. This is a real big constitutional clash. I think what makes this different and the reason I think this is so extraordinary is that in this case we are not talking about a criminal proceeding where there are indictments and we need this evidence in order to determine whether or not that proceeding goes forward in order to determine the guilt or innocence of parties.
Unlike Watergate, where there were seven indictments against individuals, not the President, high level officials, Haldeman, Ehrlichman, John Mitchell, in this case the Lewinsky matter is focused specifically at the president. Monica Lewinsky is not covered by the independent counsel statute. So the odd twist here is that it's not clear what-why it is essential for this grand jury to have this information in a criminal proceeding because most constitutional scholars presume at this point that a sitting president cannot be indicted. So if they can't use this to indict him, what do they need it for specifically? So it's a very big open-ended question. I think that the president has some leverage here, and I think, as a result, we will reach some accommodation.
JIM LEHRER: Well, let's go back on that issue, beginning with you, Mr. Campos, just to the basic question about whether or not the president needs to honor this subpoena in any way whatsoever.
Can the president ignore this subpoena?
PAUL CAMPOS: Well, I think that question has to be answered in two ways: legally and politically-there's obviously a close intersection between those two in the situation. On the one hand, I agree that President Clinton does have certain arguments that are respectable that he could put forward here saying that essentially he's not required to respond to the subpoena. It's quite true-
JIM LEHRER: Why would he not be-for constitutional reasons, for legal precedent reasons, or what?
PAUL CAMPOS: Essentially for reasons of separation of powers.
JIM LEHRER: I see.
PAUL CAMPOS: Whenever there is this kind of a potential conflict between the judicial and the executive branch, courts have been very loathe to make extremely strong or bright-lined pronouncements about what people have to do in the context of balancing the different interests involved here, and the courts have tended to take a sort of ad hoc approach. I think the bottom line here is that one way of looking at the history is, as Doug Kmiec said, to say that this is a grand jury like any other, and the President is like a citizen like any other, and he should be compelled to testify like any other citizen.
Another way of looking at it is to say that we have never done anything like this before in the entire 200 and plus year history of our legal and political system, and that it makes perfect sense to make an exception or accommodation of some kind in these circumstances, so I think President Clinton's lawyers do have some arguments that they could bring forward here if they wanted to fight it at the legal level. Now whether that makes sense politically is a completely different question.
JIM LEHRER: Staying on the legal thing, Doug Kmiec, you don't see it that way, you don't think they have a case, the lawyers for the president, say, forget it, guys, I'm not coming?
DOUGLAS KMIEC: Well, I think it's very difficult to argue that this is a separation of powers violation. I mean, after all, this is exactly what a grand jury is supposed to do. I think that question was answered in the United States Vs. Nixon. After all, Richard Nixon came in and said, look, I'm the sole judge of whether or not I have to give you documents or whether I have to respond to the subpoena.
And if you look at the internal memoranda that the justices prepared as they were writing the U.S. V. Nixon opinion, one of the things you find there is that you find that the justices wanted to be very clear that, no, this was something that was to be judicially determined by another branch. And the fact that the President has to comply, in my judgment, can't be a separation of powers violation.
JIM LEHRER: What about Professor Gormley's argument, Professor Kmiec, though, that the President can't be indicted, he can only be impeached, so the issue before the-before this grand jury doesn't really affect him directly, because it also can indict anybody else?
DOUGLAS KMIEC: Well, it can indict other people, and Monica Lewinsky is within the scope of the independent counsel appointment that Kenneth Starr has been given, and, as a result, her freedom and her liberty is at stake. We may well have a conflict of testimony between Monica Lewinsky and President Clinton. And she's entitled to fairness before that proceeding as well. So I think there is a matter of fundamental due process with regard to another citizen.
But even putting aside Monica Lewinsky, the independent counsel statute says that if criminal information has been gathered by the independent counsel, he has an obligation to report that to the House and for impeachment consideration. And so I think the fundamental difference here-and I agree with Professor Gormley-this is a profound circumstance-is that if the President defies the subpoena, if, as Ruth Marcus suggests, an agreement may not be brokered between the White House and the independent counsel, if that breaks down, then you have the very difficult question of how do you enforce the subpoena against the sitting president.
But that same question was present in U.S. V. Nixon. If Richard Nixon hadn't resigned, the Congress of the United States would have had to have gone ahead with its impeachment articles, and one of those articles was a direct article saying the President was thwarting the work of a grand jury.
A special exception?
JIM LEHRER: Professor Gormley, let's come back now to the accommodation issue, that-let's assume it doesn't go to that. Let's say that they make a deal. Do you-have you heard anything from Ruth Marcus or anybody else tonight or read anywhere anything that would make you say, wait a minute, they can't do that, that wouldn't be right to take the president, give him a special exception, as far as giving-as far as rendering his testimony or his information to the grand jury?
KENNETH GORMLEY: Absolutely not, Jim. In fact, this precise process is what happened in Watergate and, in fact, the court, itself, tried to broker a deal so that whenever we reach a constitutional impasse like this-as was pointed out-you try to avoid it. You don't want an all or nothing-either the President wins or the court wins-because that damages our system.
I think it is perfectly sensible to go this way, and, frankly, I think the best approach is I agree with the Washington Post reporter, that it is unlikely that Kenneth Starr will agree to just deposition questions, which is what the President would want, but I think some kind of videotaped proceeding where the questions are already provided to the President with input from the grand jurors, themselves, with some limited-and I emphasize limited-right to follow up questions, and as long as it's limited in that way, they'll get the basic information that they want.
And, you see, if they don't like what President Clinton says, or if they don't believe what he says, all they can do is pass this off to Congress anyway, which then has the ability to subpoena or to conduct its own investigation, so there is no great danger if there is somewhat a restricted format for this particular inquiry.
JIM LEHRER: You lawyers love to use the word precedent, so let me just ask you, if that, in fact, happens, they work out a deal, somewhere in all these things that have been talked about, does that set some big precedent for future procedures involving presidents and people like him?
KENNETH GORMLEY: Well, I think not, Jim. Actually, what we're trying to do is to avoid establishing precedent.
JIM LEHRER: Is that the process-in other words, saying you don't have to come to the grand jury room wouldn't set a precedent that somebody else could-a legal precedent?
KENNETH GORMLEY: That's right. I think the bigger concern for President Clinton is if he showed up in the grand jury room, as was mentioned.
JIM LEHRER: I've got you.
KENNETH GORMLEY: At that point, that's horrible precedent for future presidents, and he's making it stick for them as well as himself.
Presidential subpoenas: A lasting precedent?
JIM LEHRER: Professor Kmiec, do you agree that there wouldn't be some lasting precedent set here?
KENNETH GORMLEY: There's no question but Professor Gormley is right, that it's no formal legal precedent, but one of the things that is true with the presidency is that precedent is a little bit different. It really is governed by past practice. It's not always governed by a decision of the highest court in the land. And the one thing is, is it a horrible thing for the President of the United States to live up to the same responsibilities as the other citizens of the United States? I'm not so sure that that's horrible at all.
JIM LEHRER: Professor Campos, where do you come down on the precedent shattering aspects of this possibility?
PAUL CAMPOS: Well, I certainly agree that there's no formal precedential power to any kind of a special arrangement that's worked out. I would like to emphasize though that we're hearing some rather high sounding statements here about treating everybody equally and the rule of law and so forth. For me, the bottom line here is that it is extremely unseemly that we are attempting to drive the President of the United States before a grand jury to answer questions about his sex life and some possible lying about adultery. If we applied that same standard to the rest of our public officials, that's all the federal courts would be doing essentially.
KENNETH GORMLEY: Well, I don't think it's just about sex life though. It's about-
PAUL CAMPOS: No, no.
KENNETH GORMLEY: --obstruction of justice and perjury.
PAUL CAMPOS: Well, I realize that, but what I want to emphasize here is that I think that Prosecutor Starr and President Clinton's lawyers need to show some tact and some discretion here about questions, so that we don't see the truly disturbing of a president of the United States potentially refusing to follow a federal court order which, after all, one question we have no answer to is what happens next at that point.
JIM LEHRER: What happen-
PAUL CAMPOS: What are we going to do if a sitting president of the United States refuses to follow-
JIM LEHRER: Gentlemen, what happens next here is I've got to say good night. Thank you all three very much.