Last week, Representative Jamie Raskin, the lead manager in the impeachment proceedings against Donald Trump, sent the former president an invitation to testify under oath at his own trial, which begins today. Within hours, Trump’s legal advisers responded, calling the request a “public relations stunt” and stating, “the president will not testify in an unconstitutional proceeding.”
Trump’s refusal was no surprise. He did not offer testimony at his 2019 impeachment, and the only two other presidents to be impeached, Bill Clinton and Andrew Johnson, did not testify at their own trials.
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But Congress has broad subpoena power and many observers have wondered if Raskin will follow his invitation with something more legally compelling. T&C asked Andy Wright, a former associate White House counsel to President Barack Obama and a founding editor of Just Security, an online legal forum based at Reiss Center on Law and Security at New York University School of Law to describe if, and how, Trump could be called.
Could Trump be forced to testify at his own impeachment trial?
“In congressional investigations, it’s always a balance of legal principles and political leverage,” said Wright. “In other words, it’s more of a negotiation, framed in legal terms, and less of a ‘Yes, they can’ or ‘No, they can’t’ thing.”
In order for Congress to force the issue in this situation, said Wright, “They would have to issue a subpoena, and then, in the face of an anticipated refusal to honor the subpoena from former president Trump, they would have to be willing to find him in contempt and then refer that to the U.S. Attorney for D.C. for potential criminal violation prosecution. Or they could use a statute that authorizes going to court for a civil enforcement of the subpoena, which is what we’ve seen from the House side in some of these cases that happened during the Trump era.”
What’s the likelihood of a subpoena in this case?
“My guess is that neither the Senate nor the House will be inclined to do that. And if they do subpoena him and he didn’t show, I doubt that they would try to escalate it to criminal or civil contempt,” said Wright. “Here’s why: When you [issue a subpoena], you have a process fight and then that becomes the story. I think the house managers, Senate Democrats, and those Republican predisposed on side towards conviction, want to focus on the political case—which is what the former president did on January 6th, the language he used and the actions he took before that day.
Have any presidents voluntarily testified in front of Congress?
Four sitting presidents have voluntarily given testimony in front of Congress, starting with George Washington who appeared before the entire senate to discuss the “Indian treaties.” In a 2018 article for Just Security, Wright described that case as “a parliamentary procedure disaster” that went so badly for Washington that few presidents have been willing to repeat the experience.
In 1882, Abraham Lincoln gave testimony in front of a congressional committee after a portion of his annual address was leaked to the press before he presented it to Congress. At the time, many people suspected Mary Todd Lincoln of sharing the document with a columnist friend. According to the Senate Historical Office and Library, “the president went to the Capitol for a private meeting with Judiciary Committee members, to assure them that no member of his family was involved. “
Woodrow Willson appeared in front of the Senate Foreign Relations Committee in 1919 to discuss the peace treaty with Germany at the end of World War I and a proposal to join the League of Nations.
In 1974, Gerald Ford testified in front of the Subcommittee on Criminal Justice, House Judiciary Committee to “explain the reasons behind his pardon of former president Richard M. Nixon. Ford insisted that the pardon had not been prearranged, but was the result of his concerns over reports of Nixon’s deteriorating mental and physical health,” according to as Senate Historical Office and Library.
Can Congress subpoena a former president?
According to Wright, Congress has attempted several times to compel former Presidents to testify and has been met with mixed results. John Tyler and John Quincy Adams both gave testimony after they left office in an investigation of Secretary of State Daniel Webster and his use of a “contingent fund.” But, in 1953 when the House Committee on Un-American Activities subpoenaed former President Harry Truman to testify about his appointment of an official who was suspected of communist ties, the former president refused to appear. Truman appeared on television and radio to make his case why he shouldn’t have to testify. And as Wright noted in 2018, “HUAC never tested Truman’s legal theory because it did not seek to enforce its subpoena by a finding of contempt.”
What about criminal or civil cases?
Sitting presidents have been called to testify in judicial proceedings in the past; though rarely and most often in the form of providing a sworn deposition. In 1998, Bill Clinton became the first sitting president to be called in front of a grand jury when he was accused of lying during an earlier sworn deposition by saying, “there’s nothing going on between us,” about Monica Lewinsky. “It depends upon what the meaning of the word ‘is’ is,” was his now-famous response.
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