The Missing Justice Dep’t Memo on Whether a President Can Be Subpoenaed to Testify in a Criminal Case

Q&A with the memo's author

Introduction by Ryan Goodman:

A hot button issue in the Russian investigation is whether a sitting president can be subpoenaed to testify in a criminal proceeding. As it so happens, the Justice Department’s Office of Legal Counsel addressed those issues most directly in a legal opinion written in 1988, but never made public. (I have a pending FOIA request for the opinion.) The significance of the Opinion for current legal debates is apparent from its title: “Constitutional Concerns Implicated by Demand for Presidential Evidence in a Criminal Prosecution.” I reached out to the author of the 1988 Opinion, Ambassador (ret.) Douglas Kmiec, who served as head of the Office of Legal Counsel at the time. What follows is a lengthy colloquy with Ambassador Kmiec.

How did I first come across the existence of the opinion? It is discussed at some length in a footnote in an opinion written twelve years later on the topic whether a sitting president is immune from indictment and prosecution. Before jumping into the full breadth of questions and answers with Ambassador Kmiec, it is worth reading that footnote text in its entirety and forming your own opinion of what it does and does not say about whether a sitting president can be subpoenaed in a criminal case. Footnote 29 in the 2000 OLC Opinion reads in full:

The Kmiec memorandum explained that “it has been the rule since the Presidency of Thomas Jefferson that a judicial subpoena in a criminal case may be issued to the President, and any challenge to the subpoena must be based on the nature of the information sought rather than any immunity from process belonging to the President.” See Memorandum for Arthur B. Culvahouse, Jr., Counsel to the President, from Douglas W. Kmiec, Assistant Attorney General, Office of Legal Counsel, Re: Constitutional Concerns Implicated by Demand for Presidential Evidence in a Criminal Prosecution at 2 (Oct. 17, 1988). However, the memorandum proceeded to explain, “[a]lthough there are no judicial opinions squarely on point, historical precedent has clearly established that sitting Presidents are not required to testify in person at criminal trials.” Id. at 3 (reviewing precedents). The memorandum noted in particular that Attorney General Wirt had advised President Monroe in 1818 that “[a] subpoena ad testificandum may I think be properly awarded to the President of the U.S . . . . But if the presence of the chief magistrate be required at the seat of government by his official duties, I think those duties paramount to any claim which an individual can have upon him, and that his personal attendance on the court from which the summons proceeds ought to be, and must, of necessity, be dispensed with . . . .” Id. at 4 (quoting Opinion of Attorney General Wirt, January 13, 1818, quoted in Ronald D. Rotunda, Presidents and Ex-Presidents as Witnesses: A Brief Historical Footnote,” 1975 U. Ill. L. F. 1, 6). The memorandum concluded that “the controlling principle that emerges from the historical precedents is that a sitting President may not be required to testify in court at a criminal trial because his presence is required elsewhere for his ‘official duties’-or, in the vernacular of the time, required at ‘the seat of government.'” Id. at 6 (citations and footnote omitted).

QUESTIONS: ROUND ONE

PROF. GOODMAN QUESTION 1:

As head of the Justice Department’s Office of Legal Counsel, you authored the 1988 Opinion and also decided not to select that particular opinion for publication at the time. What can you tell us about your decision not to publish it back then?

AMBASSADOR KMIEC:

Responding to your inquiry, OLC opinions are published at the direction of the head of the office, subject to any overriding objection by the Atty. Gen. or the president.  While I headed the office, the standard that I applied to determine which opinions to publish took account of a number of factors:  the importance of the question answered; the likelihood that the same or a similar question might arise in the work of one of the executive departments (it is OLC’s responsibility to give binding intra-branch interpretive guidance to all of the cabinet agencies fully answerable to the president); the clarity and quality of the opinion delivered; and whether publication of an OLC opinion could conceivably be seen as a waiver of either attorney-client privilege, and especially in the context of advice given to the president, executive privilege.

In light of the present investigation into whether a presidential campaign and candidate impermissibly interacted with a foreign adversary, it might be contended that I guessed incorrectly as to the relative importance of an opinion.

Nevertheless, from the perspective of 1988, let me suggest that non-publication is more defensible than not.  The independent counsel statute had been allowed to sunset because of bipartisan dissatisfaction because it enabled policy and partisan objection to be disguised as criminal wrongdoing.  A decision not to publish thus expressed the hope that in the future, without a statutory independent counsel, there would be greater respect for the political process and democracy unencumbered by an investigatory mindset that had beset the Carter and Reagan presidencies (independent counsels having been invented as a post-Watergate response to Nixonian abuse of office).

Less philosophically, the decision not to publish also respected OLC’s unique role as the “Atty. Gen.’s lawyer” and also a concern (shared strongly by the recipient of that opinion, the White House Counsel), that OLC’s publication decisions not waive executive privilege broadly outside the parameters of a specific factual context – such parameters figuring prominently in the evaluation of privilege claims by the judiciary. In any event, opinions delivered to the White House Counsel would likely be picked up as a presidential record stored, and publicly released, pursuant to the statutes administered by the national archives. Finally, there would have been a certain amount of irony if an OLC opinion reaffirming long-standing separation of power concerns against involuntarily compelling a president to give testimony or provide potentially privileged documents to a criminal prosecution would itself become the means by which the separation of powers would be disregarded.

PROF. GOODMAN QUESTION 2:

Do you think the 2000 OLC Opinion in footnote 29 describes the core content of the 1988 Opinion well? The 1988 OLC Opinion cited Attorney General Wirt’s 1818 opinion, quoted in Ronald Rotunda’s short collection and analysis of historical materials. What struck me is how consistent the OLC Opinion is with Rotunda’s own conclusions more generally.

[Note: Rotunda concluded: “These historical examples do not of themselves establish a President’s legal duty to testify; that has not been the purpose of this piece. These examples do show that any legal argument asserting that compelled testimony from a President or former President will cause the downfall of the body politic, is groundless. The weight of history is otherwise, and fully supports Lord Hardwicke’s dictum that the public has a right to every man’s evidence.”]

Do you agree with that assessment? Can a sitting president be subpoenaed to testify in a criminal case?

AMBASSADOR KMIEC:

So what is the answer? There is no Supreme Court precedent requiring a sitting president to give testimony in a criminal proceeding; there is also no precedent exempting the president from it either. Instead, the need to comply with any such subpoena would need to be evaluated in light of both the nature of the information sought and what the Constitution envisions in terms of checking executive abuse.  The former is resolved in light of the bona fides of any executive privilege claim; the latter relates to the nature of the presidential office and whether the separation of powers contemplated presidential misdeed to be remedied by impeachment, criminal prosecution or both.  Both sets of considerations are implicitly informed by the objective of not having the president disabled from fully exercising his constitutional responsibility to take care that the laws are faithfully executed.

The application of the above separation of powers inquiry is assisted by precedent that largely resulted in a conclusion that a sitting president is not required to testify in person at criminal trials.  The 1988 and 2000 OLC opinions are consistent in this conclusion and also consistent with the rule of thumb asserted by Jefferson in U.S. v. Burr drawing distinction between compelled attendance and the sharing of unprivileged documentation.

The OLC opinions are likewise respectful, and largely consistent, with the judicial guidance supplied especially by U.S. v. Nixon and Clinton v. Jones.  In the Jones matter, Justice Stevens for a unanimous Supreme Court properly differentiated a civil suit against the president for unofficial actions from the greater intrusiveness and demands of a criminal proceeding that would necessarily command the personal attention of the president.

The evaluation of presidential subpoenas is also inseparable from the issue of whether a sitting president is subject to indictment. In Federalist No. 69, Alexander Hamilton suggested that the Constitution gives an order of operations: “the president of the United States would be liable to be impeached, tried, and upon conviction… removed from office, and would afterwards be liable to prosecution and punishment in the ordinary course of the law.” (emphasis supplied).  Some scholars question whether Hamilton was describing an order of operations or simply preempting a double jeopardy claim by an impeached president.  OLC has resolved this question by discerning from the separation of powers and the care taken by the founders in providing for the impeachment check that a sitting president may not be indicted.

While there is no definitive Supreme Court precedent settling that question, U.S. v. Nixon does outline several important considerations with respect to the availability of presidential evidence. Chief Justice Burger writing for another unanimous Supreme Court compelled Pres. Nixon to provide subpoenaed documents (tapes) where the evidence was material and relevant to the defense of individuals being criminally prosecuted and where there was no overriding national security interest or one anchored in the need to preserve the integrity of an ongoing and open criminal investigation.

So what’s the bottom line with regard to the presidential subpoena?  The Supreme Court has found no categorical presidential right to ignore a criminal subpoena of the broad sweep spoken of, for example, by former Mayor Rudolph Giuliani.  The separation of powers does strongly counsel against the issuance of such subpoenas to the president, and indeed, the president may resist a subpoena on the basis of national security and the integrity of law enforcement. OLC concluded matters in 2000 consistently with my prior opinion for the Office in 1988.  That consistency of opinion becomes more evident in light of the long held OLC conclusion that a sitting president is not subject to criminal indictment outside the impeachment process.

A former president may be criminally prosecuted. But, with regard to a sitting president, the constitutional responsibility of evaluating executive fidelity to the Constitution is given to the House. It is the House of Representatives that has the authority to bring charges of criminal misconduct but only as they are brought through the constitutionally provided process of impeachment. The separation of powers precludes fobbing off this duty upon a subordinate inferior executive officer. This ensures political accountability and also guards the presidency against incremental subtractions of its authority until the office is rendered incapable of meeting the peoples’ expectation that laws will indeed be faithfully executed.

In summary, our constitutional history enjoins upon all of the actors in the constitutional process to observe the separation of powers and not to lightly command a president to give evidence in a criminal proceeding. That said, throughout our history presidents have cooperated with criminal proceedings and have supplied documentary responses to inquiries where the evidentiary burden did not greatly intrude upon the duties of the president.

In closing, it should be observed that access to presidential testimony or evidence may also be affected by any defect in the appointment or operational conduct of the special counsel. This is why Judge Ellis’ concern over whether the special counsel has stayed within his appointed scope of authority is important. It is fair to say that the greater the distance from the core reason for special counsel appointment, the lesser the obligation of the president to respond to a subpoena.  Under Department of Justice regulations, special counsels are not to be easily appointed, but only in the rare circumstance where the entire department is conflicted. Moreover, the special counsel is a so-called, “inferior officer,” and inferior officers by definition are intended to have less prosecutorial discretion than principal officers who are subject to Senate confirmation.

Whether the special counsel has been appropriately appointed and supervised in the present case are likely questions that can be litigated at length, especially where the appointing Deputy Attorney General, Mr. Rosenstein, chose not to recuse himself notwithstanding his participation in supplying a written justification for the removal of James Comey.

QUESTIONS ROUND TWO

PROF. GOODMAN QUESTION 3:

I read the 2000 OLC Opinion footnote 29 to mean the 1988 Opinion stands for the following 3 propositions:

1. The subpoena of a sitting president to testify in a criminal case is permissible.

2. Viable legal challenges to the subpoena should be on the basis not that a sitting president is immune from such a subpoena but on the basis of the specific information requested (e.g., claims of executive privilege, which would not apply to information involving activities before the president assumed office).

I inferred propositions #1 and #2 from the first line of footnote 29 of the 2000 OLC Opinion: “The Kmiec memorandum explained that ‘it has been the rule since the Presidency of Thomas Jefferson that a judicial subpoena in a criminal case may be issued to the President, and any challenge to the subpoena must be based on the nature of the information sought rather than any immunity from process belonging to the President.’”

3. A sitting president may not have to appear in person at the courthouse but could make for alternative arrangements (e.g., a deposition in writing).

Proposition #3 would normally create a logistical issue to be managed by courts in situations in which the president, for example, is testifying as a potential witness. However, the 2000 OLC Opinion considers this insight – that a sitting president cannot be compelled to appear in person at the courthouse – as a basis for concluding that a sitting president is immune from prosecution. That’s because the trial process would effectively require the president, as defendant, to appear in person at the courthouse to an extreme our unmanageable extent.

What’s your view of that framework for understanding the constitutional law issues?

AMBASSADOR KMIEC:

First, before we go dancing in the entire forest, I think it’s useful to state OLC’s consistent conclusion. OLC has concluded that a sitting president may not be indicted and is immune from criminal process, including a subpoena. When Assistant Attorney General Moss in the 2000 opinion refers to immunity from “indictment and prosecution,” I believe him to be using the word “prosecution” to include all of the regular means of prosecution – e. g, demands for testimony, documentation, etc.

OLC was writing the 2000 opinion in response to an inquiry from the Atty. General as to whether or not OLC’s 1973 conclusion that a sitting president is immune from criminal prosecution remained undisturbed by subsequent legal development between 1973 and 2000.

One of the most important developments in the period between 1973 in 2000 was the decision of the U.S. Supreme Court in Clinton v. Jones (1997). The Supreme Court found that the president did not have an absolute immunity from civil proceeding, but differentiated and reserved the question of a sitting president’s immunity, or lack of same, to criminal prosecution. Further, the court noted: “although presidents have responded to written interrogatories, given depositions, and provided videotaped trial testimony, no sitting president has ever testified, or been ordered to testify, in open court.” 520 U.S. at 692 n. 14

Thus, with respect to your first inference about the 1988 opinion that a subpoena of a sitting president to testify in a criminal case is “permissible,” the word permissible must be qualified since it does not mean that the president can be ordered to comply with a criminal subpoena, it is merely recites the historical fact that a good number of presidents have voluntarily cooperated with requests for information in the context of criminal proceedings. In this regard, the Supreme Court elaborated that there were fundamental differences between civil contempt sanctions that had been applied by the District Court judge in Clinton and criminal contempt proceedings. The court stated: while “’the power [upheld by the Supreme Court in Clinton v. Jones] to determine the legality of the president’s unofficial conduct includes with it the power to issue civil contempt citations and impose sanctions for his unofficial conduct which abuses the judicial process,’ the Supreme Court’s decision did not imply the existence of any authority to impose criminal sanctions on the president, and that ‘the question of whether president can be held in criminal contempt of court and subjected to criminal penalties raises constitutional issues not addressed by the Supreme Court in the Jones case’” (OLC 2000 opinion at n.16).

With regard to your second inference, you are correct that OLC concluded in 1988 in the opinion I authored that viable legal challenges to the subpoena should be based more on the specific information requested than on a claimed categorical immunity for the president. That said, the 2000 OLC opinion did place far greater reliance upon separation of powers concerns that arise when the criminal process targets the unique responsibilities of the president of the United States. In this regard, Assistant Attorney General Moss in 2000 reconfirmed the 1973 OLC opinion by largely focusing on the presidential office and the extent to which the performance of executive responsibilities would be impaired by the extension of the criminal process to a sitting president, including, among other things, sixth amendment and speedy trial guarantees and the practical necessity if not constitutional requirement that the defendant be present.  Thus, there are some differences in rationale between the 1988 and 2000 opinions, but those differences do not lead to a different conclusion that the 1973 opinion retained its validity. Nevertheless, I would argue that a focus upon the nature of the information sought is more compatible with the common-law idea that no person is above the law and that the law is entitled to every person’s testimony.

With regard to your third inference that presidents have not been required to appear in person and that alternative arrangements such as a deposition or videotape session are possible and have been used by prior presidents is correct. This again is historical fact. Thomas Jefferson in the Burr case did not appear but instead deposited the sought after documents with the US attorney instructing him to release them consistently with the presidential office and criminal matter being considered. Likewise Atty. Gen. Wirt’s very practical advice to Pres. Monroe in 1818 that a subpoena asking the president’s attendance could be “properly awarded to the president of the US… But if the presence of the chief magistrate be required at the seat of the government by his official duties, I think those duties paramount to any claim which an individual can have upon him, and that his personal attendance [could be] be dispensed with….” that is returned unanswered.

You indicate that the 2000 OLC opinion relies upon the fact that a sitting president cannot be compelled to appear in person at the courthouse as a basis for concluding that a sitting president is immune from criminal prosecution. My own reading of the OLC decision-making process is the reverse: namely, the OLC first concludes that a sitting president is immune from criminal prosecution and reasons from that that anything in support of that prosecution, including subpoenas for information, are not consistent with the separation of powers and the nature of the impeachment process.

PROF. GOODMAN QUESTION 4:

What may be an example of “the integrity of law enforcement” that would be the basis for the president to oppose a subpoena? (You also refer to “the need to preserve the integrity of an ongoing and open criminal investigation.”) I think of United States v Nixon as pitting a potential national security claim (as a basis to resist a subpoena) versus the integrity of law enforcement (as the basis to uphold it). Do you disagree?

AMBASSADOR KMIEC:

Finally, you ask for an example of where “the integrity of law enforcement” is a factor favoring presidential immunity from a subpoena issued in a criminal proceeding.  You mentioned that you viewed Nixon as establishing that the integrity law enforcement would be a factor in favor of presidential disclosure.  I do not disagree, but I think of Nixon as operating in three steps: whether the evidence is relevant and material; whether withholding the relevant and material evidence can be justified as a matter of executive privilege; and finally, whether there is any counterbalancing consideration that outweighs what is conceded by that point in the analysis to be presumptively privileged. I believe your suggested consideration arises in the final step and in essence inquires whether the injustice that would be worked against a criminal defendant is outweighed by the strength of justification – in the second step, specifically, national security as well as the preservation of the integrity of an open law enforcement investigation where premature disclosure of an incomplete investigatory effort might make the investigation impossible to conclude or subject an innocent person mentioned to obloquy or perhaps reveal sources and methods unnecessarily disclosed.  Thinking of Nixon in a three-step model may be somewhat artificial since obviously considerations of what is privileged and where that privilege can be overcome by a substantial reason are two sides of the same coin. 

About the Author(s)

Douglas W. Kmiec

Caruso Family Chair in Constitutional Law and Human Rights, Pepperdine School of Law; Ambassador of the United States (ret.); served Presidents Ronald Reagan and George H. W. Bush during 1985-89  as Assistant and Deputy Assistant U.S. Attorney General, Office of Legal Counsel, U.S. Department of Justice.

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.