Supreme Court rules a state has the right to subpoena the President - Melvin
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Supreme Court rules a state has the right to subpoena the President

by Melvin Cook

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Aaron Burr was a colorful and controversial character in America’s colonial era, often cast as a villain or anti-hero next to revered founding fathers such as Washington, Jefferson, Adams, Franklin and Hamilton. Imbued with sky high ambitions, Burr missed becoming President of the United States by a hair’s breadth.

He was Jefferson’s Vice Presidential candidate in the 1800 presidential election. The election ended in an electoral college tie, sending the tie breaking vote to the House of Representatives, which selected Jefferson as President. Burr then served as Jefferson’s Vice President.

During Burr’s last year as Jefferson’s VP he shot and killed Alexander Hamilton in a famous illegal duel in Weehawken, New Jersey. Though he was never charged with a crime for the killing, his reputation precipitously plummeted and he headed west as a soldier of fortune.

Out west, Burr devised a scheme to raise a filibustering private army against Mexico, which was governed by Spain at the time. Spain and the United States were experiencing tense relations and he expected imminent war to break out between the two nations. His plan was to create a new territory in the west. His collaborator in this far fetched enterprise was General James Wilkinson, the governor of the Louisiana Territory.

But while Burr was busy gathering allies (including Andrew Jackson) to his side, rumors began to circulate that he was attempting to break off several states from the Union. General Wilkinson, fearing dire consequences for himself, wrote a series of letters to President Thomas Jefferson accusing Burr of sedition against the United States. Jefferson issued a warrant for Burr’s arrest. A grand jury was convened, which eventually indicted him for treason.

Interestingly, the only physical evidence adduced against Burr in a grand jury proceeding was one of Wilkinson’s letters, purported to have been written by Burr, which set forth the notion of stealing Louisiana purchase territory. This letter was later discovered by the court to have been in Wilkinson’s handwriting, for which Wilkinson was roundly mocked in the news media.

Burr’s trial took place in the sultry months of summer 1807 in Richmond, Virginia, with Chief Justice John Marshall presiding as United Stated Circuit Court Judge. Article III Section 3 of the U.S. Constitution defines treason very narrowly and states that “No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.” (Apparently, the use of capital letters in the founding era was much the same as we might find in a typical Twitter feed today, thus proving that spelling and grammar are not all they’re cracked up to be).

Burr of course did not confess and the evidence against him ended up being thin gruel insufficient to convict. But because he was on trial for his life, he moved for a subpoena duces tecum directed to President Jefferson to produce an October 21, 1806 letter from Wilkinson to Jefferson and other documents. The prosecution objected on the grounds that the President was not subject to such legal process and that the letter might contain state secrets.

Justice Marshall ruled in favor of Burr, stating that the President is not “exempt from the general provisions of the constitution” and in particular from the Sixth Amendment’s right to compulsory process in one’s defense and to confront one’s accuser. Justice Marshall differentiated between a king and the President. Whereas a king is born to power and “can do no wrong” in the eyes of the law, a President is “of the people” and is subject to the law.

The foregoing facts and some of the language were obtained from a Wikipedia article on Aaron Burr, the Supreme Court’s decision in the recent Supreme Court case of Trump v. Vance, and my memory from watching the Broadway play “Hamilton.”

Fast forward 212 years. The New York County District Attorney’s office, acting on behalf of a grand jury, served President Trump’s personal accountants’ office (Mazars) with a subpoena duces tedium demanding production of ten years’ worth of tax returns. Predictably, the President, acting in his personal capacity, sued the district attorney and Mazars in federal district court seeking to enjoin enforcement of the subpoena. He argued that a President has absolute immunity from state criminal legal process under Article II and the Supremacy Clause of the United States Constitution.

The United States as amicus curiae argues that a state criminal subpoena to a sitting President must satisfy a heightened need standard. The District Court dismissed the case and in the alternative held that the President was not entitled to injunctive relief. The Second Circuit Court of Appeals rejected the District Court’s dismissal but upheld its denial of injunctive relief. The Court of Appeals also rejected the United States’ argument for a heightened need standard.

The U.S. Supreme Court held that a sitting President is subject to a state criminal court subpoena without the need to show a heightened need standard.

The Court relies heavily on the centuries old precedent of the Burr case. The Court also noted that in the two hundred years since the Burr case, presidents from James Monroe to Bill Clinton have uniformly agreed to testify when called in criminal proceedings.

The case of U.S. v. Nixon also had precedential value. There, a Watergate Special Prosecutor secured over an objection based on executive privilege, a subpoena for among other things, tape recordings of Oval Office meetings.

The case of Jones v. Clinton held that a sitting President is subject to a federal court civil lawsuit for acts done prior to taking office and unrelated to the office.

Nixon v. Fitzgerald held that a President is immune from civil damages based on his official acts. Of course, he is not immune from criminal liability for official acts but cannot be indicted while in office, since impeachment and removal must precede any criminal litigation against a President.

The novel issue before the Court was whether or not a President is exempt from a subpoena in a state criminal case. Based on a reading of all the foregoing precedents, the Court concluded that.a President has no such special immunity. As stated by the Court, the state is entitled to “every man’s evidence.”

The Court took pains to note that the President has all the defenses from subpoenas as are available to any person, such as undue burden, over breadth, bad faith, etc.

The Court remanded the case to the federal district court, where the President could raise any of those defenses that are available to any person who has been served a subpoena.

Justice Thomas felt the Court had inexplicably failed to address the President’s argument against enforcement of the subpoena in contrast to its issuance. He would have vacated the matter and sent it back to the federal district court to allow the President to show whether enforcement of the subpoena should be enjoined on the grounds that his “duties as chief magistrate demand his whole time for national objects.”

Justice Alito wrote a dissent in which he set forth reasons why he would require prosecutors to show a “demonstrated, specific need” before being allowed to subpoena a sitting President. He based his argument on the fact of the President’s vast responsibilities and need to be as free as possible to perform those duties for the nation.

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