1 (May 4, 2018)

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              Congressional                                            ______
           **Research Service                                                            a

Compelling Presidential Compliance with a

Judicial Subpoena

Todd   Garvey
Legislative   Attorney

May   4, 2018

Special Counsel Robert Mueller reportedly warned President Trump's lawyers in a March meeting that if
the President declined to participate in a voluntary interview, Mueller could issue a subpoena compelling
the President's testimony before a grand jury. The alleged exchange raises the question of whether a
sitting President, consistent with the separation of powers and Article II of the Constitution, may be
required to comply with a subpoena for his testimony as part of an ongoing criminal investigation.
Before addressing this question, it is necessary to define the type of subpoena that may be envisioned by
the Special Counsel. Special Counsel Mueller, who has been vested with the powers and duties of any
United States Attorney, has not been provided independent and unilateral authority to issue generalized
subpoenas for testimony. Instead, any subpoena to the President would likely be issued by a grand jury-
at the request of the Special Counsel-but under the authority of the judiciary. The subpoena would
therefore accurately be framed as an attempt by the judicial branch to compel testimony from the
President, giving rise to possible concerns under the separation of powers.
The Supreme Court has not directly confronted the question of compelled presidential testimony;
however, the question is not a novel one. It is, in fact, a question that has been the subject of some debate
throughout American history and any evaluation of the President's obligations should be undertaken
within that historical context.

Examples from History: Thomas Jefferson and William Jefferson Clinton

The question of a President's obligation to comply with a judicial subpoena connected to a criminal
investigation appears to have first arisen in 1807 during the criminal prosecution of Aaron Burr. Had Burr
taken the advice of his own character from Hamilton to talk less and smile more, perhaps he would
not have found himself in the unenviable situation of being a defendant in a trial for treason. But he had
allegedly conspired to create a separate and independent country in the present day southwestem United
                                                               Congressional Research Service

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