Normalcy In Addition To The Presidential Subpoena

While predicting what is probable to come upwards adjacent inwards the unfolding legal drama surrounding the President seems something of a fool’s errand, the prospect that Special Counsel Robert Mueller mightiness subpoena the President to compel him to prove earlier a federal grand jury right away seems at to the lowest degree plausible plenty to receive got prompted to a greater extent than than a piffling commentary on the constitutionality of such a move.  Most views cluster around the conclusion I tend to share: the interrogation whether the President tin hold out compelled to prove was formally left opened upwards yesteryear United States v. Nixon, but the considerations that led the Nixon Court to conclude that President could hold out compelled to plow over good tapes relevant to a federal criminal prosecution tend to favor the conclusion (as produce subsequent cases similar Clinton v. Jones) that Trump could, modulo item claims of executive privilege most item lines of inquiry, hold out compelled to prove here.

Princeton historian Keith Whittington, however, suggests courts mightiness good (and, I accept him to argue, should) accept a dissimilar view.  Whittington emphasizes “two considerations that should weigh on the minds of the justices too that mightiness give them interruption earlier extending the logic of United States v. Nixon too Clinton v. Jones.” In brief, Whittington argues: (1) that commanding a President to appear earlier a courtroom too render testimony “intrudes on the meat performance of a coordinate branch” inwards a means that commanding the President to plow over documents or fifty-fifty recordings does not; too (2) the courts should hold out reluctant to play (borrowing Mark Tushnet’s phrase) “constitutional hardball” against the political branches inwards general, too most especially here, where they seem upwards a President who has given them every ground to accept seriously “the possibility that Trump mightiness pick out to accept the extraordinary measuring of ignoring a judicial order, especially i that threatened his meat personal interests.”

Although Whittington is sure as shooting correct to underscore the high stakes – personal too constitutional – attending whatever actual struggle over presidential testimony, neither of these reasons strikes me equally adequate grounds for whatever contemporary courtroom to shy away from enforcing an appropriately express subpoena.

The commencement suggestion – that in that place is a departure betwixt presidential testimony too presidential tapes – is truthful plenty equally far equally it goes.  But the constitutional significance of this distinction, if i exists, is far from apparent.  Whittington’s primary declaration hither seems to hold out a functional one: requiring alive testimony is to a greater extent than probable to interfere with the President’s powerfulness to comport out meat tasks than handing over already-recorded tapes did because commanding the President to appear somewhere item at some item fourth dimension somehow undermines the President’s powerfulness to human activity with Hamiltonian “secrecy too dispatch,” if such activeness should larn necessary.  But classic functional arguments similar these seem difficult to credit inwards whatever practical feel today. In an historic menstruum when in that place is a vast technical back upwards apparatus operating circular the clock devoted exclusively to ensuring that the President’s physical place at whatever given 2d anywhere inwards the Blue Planet is irrelevant to his powerfulness to comport out his job, that the President happens to hold out out of the Oval Office answering questions when a crisis arises should hardly deprive him of the powerfulness to human activity with every wages of “secrecy too dispatch” Hamilton mightiness remotely receive got conceived.  

Neither does it seem plausible that whatever subpoena-enforcing courtroom would decline to attend to the many pragmatic cautions the Nixon too Clinton Courts emphasized inwards subjecting presidents to judicial procedure – deferring to the President’s scheduling too go demands too of course of written report whatever final infinitesimal exigencies or job-related interruptions, taking assist to avoid topics properly champaign of written report to executive privilege, etc.  There is no conceivable scenario inwards which a courtroom declines to laurels a presidential asking to, say, postpone a scheduled grand jury appearance for some reasonable interval because the President has some adept organized faith claim that unavoidable official trace of piece of work organisation requires his personal attention. Such accommodation is not, equally Whittington suggests, a “hollow[ing] out” of the subpoena power. It is precisely the form of unremarkable compromise of convenience that keeps a modern authorities of co-equal branches with profoundly overlapping responsibilities functional inwards the ordinary course. 

The to a greater extent than of import concern Whittington raises is the judiciary’s capacity to play – too win – a game of constitutional hardball with the President of the United States.  As a full general matter, it seems foreign to imagine that the modern Court would fifty-fifty contemplate a render to encompass the “passive-aggressive” virtues equally exercised yesteryear the Court of John Marshall, which Whittington recalls, when the U.S. Presidency too Supreme Court were inwards their institutional infancy.  All apart from the Court’s existing familiarity with compelling a sitting President to plow over evidence solely against his involvement (with no guarantee that Republicans too then inwards Congress would rally to back upwards it), this is a Court that has inwards the yesteryear 50 years alone, but for example, decided a presidential election; rejected a presidential endeavour to enjoin the publication of a classified written report of an ongoing war; too (a instance right away especially timely again) insisted that meat international police pull prohibitions apply fifty-fifty to the non-traditional U.S. conflict against terrorist groups (a conclusion that drove the Bush Administration CIA to race to transfer its remaining ‘black site’ interrogation prisoners to to a greater extent than legally compliant facilities).  This is non a Court, on either destination of the bench, accustomed to passivity on matters it determines to hold out of consequence.  It besides is a Court – too a terra firma – accustomed to having fifty-fifty its most consequential rulings followed yesteryear fifty-fifty our most contemporary presidents.

Certainly aware of this reality, Whittington’s declaration hinges on the notion that this President, uniquely probable alongside modern presidents to disobey a courtroom order, should Pb the Court to shift its institutional calculus.  The declaration is hardly intuitive – amounting to a claim that the best means to bargain with a president who has displayed singular scorn for U.S. courts too police pull enforcement institutions is to trim down the sails of U.S. courts too police pull enforcement institutions.  The implication that the Court is to a greater extent than probable to endure than Trump from losing a game of constitutional chicken is besides inconsistent with what world polling mightiness predict. (Polls drib dead along to show, for example, meaning bulk world back upwards for the Mueller investigation; too public crediting of the trace of piece of work organisation human relationship of quondam FBI Director James Comey over Trump. Perhaps to a greater extent than important, polls continue to present world trust inwards the judiciary a cracking bargain higher than world trust inwards the executive (or Congress).) Indeed, in that place is at to the lowest degree equally much create to imagine the Court’s institutional credibility volition endure to a greater extent than if it fails to need Trump’s (relevant, limited) testimony than if it insists upon it.  For far from the conundrum courts seem upwards when asked to pretend, for the sake of preserving their ain institutional norms too customs, that an abnormal president is normal (see Dahlia Lithwick here, Sandy too Mark here), the contemplated subpoena showdown presents the far less threatening circumstance inwards which the courts tin save their ain institutional customs, without pretense, yesteryear treating an abnormal president normally.  In the historic menstruum post-Nixon too Clinton, that is all that is required here.