If the congressional committees investigating alleged Russian meddling of the 2016 presidential campaign eventually want to hear from President Donald Trump himself, don’t count on a subpoena working its magic.
Trump, who has denied any Russian interference with the election, wouldn’t’be the first president to take a seat in Congress. Any appearance would almost certainly be treated as voluntary, said Ronald Rotunda of Chapman University Dale E. Fowler School of Law, who served as assistant majority counsel to the U.S. Senate Watergate Committee.
But what if Trump refuses to show up? “There has never been a case of Congress holding a president in contempt or enforcing a subpoena” for a president’s appearance, Rotunda said.
There are two ways to get a president to testify before a congressional committee, said Kerry Kircher, former general counsel to the U.S. House of Representatives. There is the straight ask, and then there is compulsion via a subpoena. “I’m not aware of any president speaking to Congress in an investigatory, hostile setting,” Kircher said.
The closest and most recent example of presidential testimony on Capitol Hill is that of President Gerald Ford. On Oct. 17, 1974, Ford voluntarily went before the House judiciary subcommittee on criminal justice to explain his reasons for granting a pardon to President Richard Nixon in September of that year.
“He won high plaudits for doing that,” said Mark Rozell, dean of the Schar School of Policy and Government at George Mason University. “He took on his critics directly. It was a Democratic-controlled committee at the time and some were very harsh in their questioning and criticism of Ford. But he wanted to project that he had done nothing wrong, had good reasons, and was willing to do it in an open forum. I think it was courageous and did him an enormous amount of good. Obviously these are different situations.”
In 1862, in the midst of the Civil War, President Abraham Lincoln appeared before the House Judiciary Committee, which was investigating the leak and publication of a portion of Lincoln’s last annual message to Congress. Lincoln defended his wife, who some commentators suspected of being the leaker. Although never officially proven, the leaker ultimately was believed to be the White House gardener.
“We do seem to have a leak fest here, which is not unusual, except in degree,” said Rotunda. “So I can see the president saying, ‘I’m not going to cooperate with this because I’m worried about leaks.’”
In 1919, the Senate Foreign Relations Committee went to the White House to take testimony from President Woodrow Wilson on the peace treaty with Germany and the creation of the League of Nations. He reportedly answered questions for three and a half hours.
‘The ultimate drama’
The second way to seek the president’s appearance—if not voluntarily—is the issuance of a subpoena.
“If you get past the politics of getting a subpoena issued, it’s inconceivable to me that at this point in time, this president would comply,” Kircher said. “And then you have the question of whether to hold him in contempt. Holding a president in contempt is the ultimate drama.”
When he was the House general counsel, Kircher said, the House took the view that if it were to go to court to enforce a subpoena, it was prudent to hold the person in contempt first to avoid any legal arguments that the chamber had not exhausted all remedies. If the chamber goes to court, he added, the U.S. Department of Justice, as it always does, would argue the House or Senate has no right to be in court.
The Justice Department also would argue the president is immune to a congressional subpoena. “That was the first argument the department made in the [Harriet] Miers-[Joshua] Bolten case,” Kircher said, when they refused to comply with the House Judiciary Committee’s subpoenas for testimony and documents related to an investigation of the firing of U.S. attorneys.
Kircher said he is doubtful the Republican-controlled Congress would be willing to go through hoops—at least not now—to force Trump to testify.
“When Trump’s approval ratings erode to the point that congressional Republicans worry about their re-election, that’s the point when everything changes in Washington,” he said. “Maybe they would.”
Reuters reported Wednesday the House Intelligence Committee plans to issue subpoenas to Michael Flynn, who served as Trump’s former national security adviser, and to Michael Cohen, a Trump Organization attorney who’d long worked with Trump. Covington & Burling’s Robert Kelner represents Flynn.
George Mason’s Rozell said it was more realistic that the president would appear before the special counsel, Robert Mueller III, the former partner at Wilmer Cutler Pickering Hale and Dorr who was picked to lead the investigation.
“A special counsel complicates things. If a president goes before a legislative committee, that opens up many possibilities for the special counsel to explore,” Rozell said. “The president would have to be very careful about what he puts on the record. If he is willing to speak to Congress openly, there’s not much chance he could claim executive privilege and try to conceal information and testimony from a special counsel.”
Executive privilege likely would be the president’s first response to any request and there is ample precedent for that claim in legislative requests for testimony, Rozell said. “That’s not to say all the claims are necessarily valid, but oftentimes that’s a first line strategy and sometimes it’s a delay tactic too,” he said.
In the independent counsel’s grand jury investigation into President Bill Clinton’s relationship with Monica Lewinsky, the president made numerous claims of privilege that he lost before U.S. District Judge Norma Holloway Johnson, Rozell said.
Every time Clinton raised the privilege, he delayed the investigation longer and longer while the White House built a public response.