Serving the president: when must a president obey a subpoena?

• Author: Whittington, Keith E.

Long after the tawdriness that has become the Clinton administration is forgotten, the effects of the Lewinsky episode on the presidency will still be felt. In his "war" against Independent Counsel Kenneth Starr, the president has deployed every available weapon. A variety of presidential privileges have been dusted off or made up - from privileges of communications with government lawyers or political advisers to privileges preventing Secret Service agents from testifying about what they have witnessed while on duty. The shame is not that the courts have uniformly rejected these claims but that they were litigated in the first place.

One significant issue remains unsettled: whether a president is legally obligated to comply with a subpoena. Although it appears that this question will not be answered during the Clinton presidency, current events suggest that the issue will eventually have to be resolved. In 1974, the Supreme Court ordered Richard Nixon to turn over the Watergate tapes, but the Court has not yet required a president to testify in a civil or criminal proceeding. By reaching a voluntary arrangement with the president to testify before the Whitewater grand jury, Starr avoided lengthy litigation, and Clinton avoided another potentially embarassing legal defeat. Starr seemed hesitant to strip away this last vestige of presidential cover, and rightly so. The president's duty to comply with a subpoena raises tricky constitutional issues. As a nation we would be better off if the question were not settled in court.

Thomas Jefferson was the first president to face this problem, and he insisted that the president could not be independent of the judiciary if "he were subject to the commands of the latter" and "if the several courts could bandy him from pillar to post." Similarly, in his Commentaries on the Constitution (1833), Justice Joseph Story concluded that the president must be allowed to perform his duties "without obstruction...accountable only to his country, and to his own conscience."

Yet Kenneth Starr obtained a subpoena for President Clinton to appear before the Whitewater grand jury and withdrew it only after the president agreed to testify. Starr clearly decided that a second appearance by the president was unnecessary, but Clinton's uncooperative behavior before the grand jury must have made that a difficult call.

If a prosecutor believes a president is being uncooperative to such an extent that issuing a subpoena is his only option, must the president comply? How would a president be punished if he refused? Who would put the president in jail for contempt? Such practical questions highlight the difficulty of thinking of...