little has been advanced on behalf of the former President or by the Department of Justice in support of the objection.
To be sure, the point is made, just as it is with respect to in-court testimony, that the compelled testimony of a former President would have an adverse impact on the Presidency, in that the confidence of foreign leaders in the President of the United States would be shaken by his appearance in such proceedings, and more particularly by such events as the failure of government counsel to object to questions that could conceivably affect these foreign interests and that they may regard as "a slight to [their] dignity and stature," and that "the very selection of which questions to answer may offend foreign sensitivities."
The suggestion is also made on behalf of President Reagan that he should not be required to testify because "the spectacle of a former President being subjected to peremptory judicial process may chill foreign governments in the way they deal with the President now and in the future."
In view of recent developments toward the establishment of democratic forms of government in many parts of the world, and the concomitant halt to the isolation and organized adulation of all-powerful leaders, foreign nations might regard the amenability of a President of the United States to the processes of justice and to courts of law with understanding, and perhaps admiration, rather than with scorn.
In any event, the Court categorically rejects the suggestion that foreign appreciation or lack of appreciation of procedure under American law or "foreign sensitivities" regarding that procedure should be determinative of what a United States court must do in a criminal case involving an American citizen, indeed one who was a naval officer and until recently a high official in our government.
B. Defense Objections
Defendant, too, objects to the alternative of a videotaped deposition. As with respect to written interrogatories, defendant relies on the Sixth Amendment, although as the paucity of his case citations attests, that his legal position is much weaker.
Defendant's reliance on Rule 15 of the Federal Rules of Criminal Procedure is no more persuasive. That Rule allows for the testimony of a party's prospective witness to be taken and preserved for use at trial "whenever due to exceptional circumstances of the case it is in the interest of justice," and exceptional circumstances are in the main equated with the unavailability of the witness. United States v. Ismaili, 828 F.2d 153, 159 (3rd Cir. 1987); United States v. Sun Myung Moon, 93 F.R.D. 558, 559 (S.D.N.Y. 1982). The unavailability of a witness is, in turn, defined in Rule 804(a) of the Federal Rules of Evidence. That Rule declares a potential witness to be unavailable in terms that closely fit the present situation.
Defendant also argues that the substitution of testimony at a deposition for testimony in a courtroom would deprive him of certain practical advantages, in particular the right to require the witness to face the jury and the public personally, in a formal judicial setting.
There is no question but that this is a departure from normal criminal procedure, but the question is whether this flaw in terms of the defendant's interests can be justified by the extraordinary circumstance of the compelled testimony of a former President
and the consequences flowing therefrom. These consequences are discussed below.
C. No Direct Precedent for In-Court Testimony
As indicated above, there is an absence of a direct precedent in two hundred years of American history for the compelled testimony in a courtroom by an incumbent or former President. While that fact is surely not determinative, it does call for a sense of caution by this Court. Did the judges from John Marshall to John Sirica who did not, ultimately, insist on Presidential testimony in a courtroom, exhibit a sensitivity for the play in the joints in our tripartite system of government that should at least be considered here? This Court believes so.
But there are also more tangible reasons for giving serious consideration to the alternative of a videotaped deposition.
D. Need for Consultation
One significant practical problem with in-court testimony by a former President is that the possibility of executive privilege available to him, to the incumbent President, or to both, is ever present.
A former President has the authority to claim executive privilege for confidential communications occurring during his incumbency. Nixon v. Administrator of General Services, 433 U.S. at 448-49. Insofar as the protection of national security interests and those of a diplomatic nature are concerned, the incumbent President may assert executive privilege with respect thereto, either on his own or in conjunction with the former President. See generally, Department of the Navy v. Egan, 484 U.S. 518, 527, 108 S. Ct. 818, 98 L. Ed. 2d 918 (1988).
It is also clear that the claim of executive privilege is a serious matter and is not to be advanced lightly in any case, and especially so in a case where a former close subordinate of the President seeks his testimony. It may therefore be anticipated that, should questions be asked of former President Reagan at the trial that arguably impinge upon executive privilege, he might wish to consult with his own counsel, as well as with counsel for the incumbent President, before making a determination whether to assert that privilege. Moreover, the Court would at that point have to render a decision with respect to the weight of the privilege claim in light of defendant's right to a fair trial. Certainly, such consultations, proceedings, and decisions, not to mention appeals, would take time, and they could seriously disrupt the orderly flow of a trial taking place in a courtroom where a jury is also present and waiting.
Defendant's response to these considerations is not convincing. He says that, since his subpoena to the former President specifies sixty-seven areas of inquiry which will be "the focus" of his examination at trial, Mr. Reagan "already has sufficient information to determine whether the proposed areas of inquiry are likely to touch upon communications he deems to be 'confidential' and which he believes must remain so."
As the Court has already indicated, the sixty-seven areas are so diffuse and potentially wide-ranging that they do not narrow the scope of any inquiry by defendant's counsel by very much.
Even as the areas of inquiry are now limited to the 154 specific questions the Court has approved, the former President will have access in advance only to the "primary questions," and follow-up may be expected within the area of inquiry established by these primary questions. Although this mode of proceeding will reduce the number of times when, in the course of the trial, side issues relating to privilege and the like will need to be discussed at length, it does not eliminate the threat of such discussion, briefing, and possible appellate review, and it may not even reduce them by very much.
E. National Security Concerns
These considerations are heightened when the claim of executive privilege involves national security considerations. Here again, the dynamics of the trial which demands instant responses, must be juxtaposed against the need for care both in the raising of such issues and in their resolution. Additionally, as President Reagan correctly points out, "requiring delicate constitutional and national-security decisions that may, on reflection, be entirely unnecessary undermines not only the confidentiality protected by executive privilege but the dignity of the President and the judiciary as well. Nor can the defendant be said to benefit from such an unpredictable and tumultuous process."
Defendant's response is, again, not cogent. He contends that under section 5 of CIPA he has the obligation to notify the government in advance of all classified information he anticipates eliciting from Mr. Reagan at trial, and that the Court could settle the issues of use, relevancy, and admissibility in advance of trial in the context of a section 6 CIPA hearing, even if Mr. Reagan testified at the trial itself.
That much is certainly correct. However, a President, by definition and in practice, is the repository of the nation's most vital secrets. It is the Court's judgment that in the exceptional circumstance of testimony by an individual who was the President of the United States until a little more than a year ago, it is best that, when that person is called upon to testify on subjects with which he dealt only recently,
the insurance provided by CIPA be augmented by having that testimony taken in more private surroundings than a courtroom where the inadvertent disclosure of sensitive information would be beyond recall. This process would, of course, be valid only if it did not infringe on the constitutional and other legal rights of the defendant.
On that issue, it is the Court's conclusion, based on all the factors enumerated above, that a videotaped deposition of the former President, properly conducted, will adequately protect defendant's rights. Most significantly, testimony by way of a deposition will preserve the spontaneity of courtroom testimony. The attorneys will be able to examine and cross-examine in their accustomed fashion, and the witness will have to answer immediately, on his own, and in accordance with the usual and customary procedural and evidentiary rules. As the deposition testimony will be videotaped, the witness' demeanor will be fully apparent to the ultimate trier of facts, in some sense in magnified form.
Various courts have in recent years upheld the use of videotaped depositions against challenge by criminal defendants based on the Confrontation Clause of the Sixth Amendment and Rule 15. See United States v. Keithan, 751 F.2d 9 (1st Cir. 1984); United States v. Tunnell, 667 F.2d 1182 (5th Cir. 1982); United States v. Acevedo-Ramos, 605 F. Supp. 190 (D.P.R. 1985); and see particularly Justice O'Connor's concurring opinion in Coy v. Iowa, supra, 108 S. Ct. at 2804 (child abuse victim's testimony via closed circuit television).
For the reasons stated, the Court, having permitted service of defendant's subpoena ad testificandum on former President Ronald Reagan (see (slip op. at) p. 35, supra), hereby directs that President Reagan shall appear for examination by counsel at a videotaped deposition to be held in advance of the trial of this cause.
Resolution of Disputes
As noted above, the defendant has been required to submit a list of specific questions; these questions have been filed, as have been various objections; and the Court has approved some of the questions, eliminating others as lacking inter alia in relevancy and materiality. Defendant's examination of the former President at the deposition will be restricted to these questions as limited by the Court, and to legitimate follow-up questions in the same area of inquiry.
It is inevitable that disputes will arise concerning such issues as whether particular questions to the former President constitute legitimate and proper follow-up; whether other follow-up questions are relevant, material, and otherwise admissible under the usual rules of evidence; whether certain lines of inquiry may be foreclosed by the doctrine of executive privilege; and possibly whether problems exist under the Classified Information Procedures Act. In order to avoid the extended delays inherent in interruptions of the deposition to secure resolutions of such disputes, the Court will be present at the deposition to rule on the questions themselves,
and it will also rule at that time on executive privilege issues, if any, and to the extent feasible, on any CIPA questions.
This process should obviate the necessity for repeated depositions by the former President, as disputed issues are resolved piecemeal in Washington. Furthermore, with the trial of this defendant due to begin in approximately two weeks, unless decisions concerning disputed evidentiary matters regarding the Reagan testimony are made then and there to the extent that it is possible to do so, it could be that the deposition of the former President would not be completed in advance of the trial.
Former President Ronald Reagan is claimed by Admiral Poindexter to have direct and important knowledge that will help to exonerate him from the criminal charges lodged against him. In view of the prior professional relationship between the two men, and defendant's showing discussed above, that claim cannot be dismissed as fanciful or frivolous. That being so, it would be inconceivable -- in a Republic that subscribes neither to the ancient doctrine of the divine right of kings nor to the more modern conceit of dictators that they are not accountable to the people whom they claim to represent or to their courts of law -- to exempt Mr. Reagan from the duty of every citizen to give evidence that will permit the reaching of a just outcome of this criminal prosecution. Defendant has shown that the evidence of the former President is needed to protect his right to a fair trial, and he will be given the opportunity to secure that evidence.
At the same time, the Court has the obligation to protect the rights of the former President and the privileges of the Presidency from the risk of unnecessary disclosures of confidential deliberations or national security subjects. To achieve those ends, and to safeguard the judicial process from disruption, the former President's evidence will be taken by way of a deposition where recesses can be called as necessary, and where consultations can be held on such subjects as the need for the invocation of executive privilege or the handling of sensitive defense information. The Court will be present to ensure that these recesses and these consultations are limited to legitimate subjects.
This method of proceeding will serve to avoid the sterility of written answers to written questions and preserve the flexibility and spontaneity that are essential to the effective examination of a witness. It will also ensure that there will be no revelation of national security and other secrets not appropriate or necessary for disclosure to the jury and the public. The Court is confident that this procedure, while necessarily taking account of the special aspects of this particular case, is in the spirit of the solutions that have been fashioned in the past when, in the course of this nation's history, the courts were confronted with the difficult issues that invariably surround a demand for the call of a President to the witness stand.
[ Online as 1990 U.S. Dist. LEXIS 1176 and 1990 U.S. Dist. LEXIS 1221.]