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UNITED STATES v. POINDEXTER

February 5, 1990

UNITED STATES OF AMERICA
v.
JOHN M. POINDEXTER



The opinion of the court was delivered by: GREENE

 The Court is called upon to decide whether, under the Constitution and laws, former President Ronald Reagan may be subpoenaed to testify as a witness for the defense in the criminal trial of his erstwhile National Security Advisor John Poindexter. Related to that issue is the question whether a sufficient factual showing has been made by the defendant to cause the Court to order the subpoena served, and if the answer to that question is in the affirmative, in what form President Reagan's testimony should be given.

 I

 Background and History

 Defendant has petitioned the Court to allow him to serve former President Reagan with a subpoena to compel his attendance and testimony at the trial of this case. *fn1" Following the receipt of defendant's petition, the former President and the Department of Justice (representing the incumbent President) *fn2" filed papers opposing service of the subpoena. *fn3" The Court considered briefs of the parties, and it held a hearing on the subpoena issues on January 23, 1990. *fn4" At the conclusion of that hearing, the Court directed defendant to file with the Court and to serve on counsel for the former and for the incumbent President a statement of the precise questions he proposes to ask President Reagan, and both the former and the incumbent President were given the opportunity to respond to that statement. See Part III, infra.5

 A number of legal and factual issues are implicated by the matter before the Court. In view of the extraordinary nature of the request for the compelled testimony of a former President, and the parties' widely divergent views concerning the history of prior efforts to require sitting or former Presidents to testify, it is useful first to recapitulate and analyze that history.

 Counsel for President Reagan and the Department of Justice contend that defendant is requesting the issuance of an order that "no other federal judge has issued in the history of our Republic: defendant urges this Court to compel a recent former President to appear and testify at a trial on matters concerning the conduct of his Presidency." *fn6" Defendant, on the other hand, claims that what he seeks here is "not unprecedented," in that several American Presidents and former Presidents have given testimony under oath in judicial or quasi-judicial proceedings. *fn7" At least in a technical sense, both sides are correct.

 History records less than a dozen instances of testimony of Presidents of the United States in judicial or congressional proceedings in two hundred years of American history. *fn8" For purposes of the issue before the Court, that history may be divided into three segments: relatively ambiguous events early in the history of the Republic; testimony before congressional bodies between 1846 and 1912; and the most recent practice, beginning with Watergate.

 1. The first, and one of the most famous, controversies surrounding an effort to compel a President to testify occurred in the treason trial of former Vice President Aaron Burr in 1807. United States v. Burr, 25 F.Cas. 30(C.C.Va. 1807) (No. 14,692d) . Burr initially intended to issue a subpoena duces tecum to President Jefferson for the production of a letter and other papers from General James Wilkinson which allegedly contained instructions to the Army and the Navy "to destroy" his person and property. Counsel for the government contended that a general subpoena for the attendance of the President could issue, but not a subpoena duces tecum. According to counsel for Burr, on the other hand, the personal attendance of the President could be dispensed with if the documents were produced. In response to these arguments Chief Justice Marshall stated that

 Burr at 34. *fn9" The subpoena was consequently issued, and President Jefferson's Attorney General produced portions of the letters and other papers. Jefferson also agreed to testify at a deposition in order to avoid the administrative inconvenience of a personal appearance at trial. Id. at 69.

 A similar plea of administrative inconvenience by a sitting President was that of James Monroe in 1818 in response to a summons to testify at a court-martial on behalf of the defendant. *fn10" Initially President Monroe, too, suggested the alternative of a deposition, but the parties ultimately agreed on answers to written interrogatories. President Ulysses S. Grant voluntarily gave deposition testimony on behalf of the defense in the criminal fraud trial of his confidential secretary.

 2. John Tyler was subpoenaed by and testified before a congressional committee in connection with its investigation of disbursements by then Secretary of State Daniel Webster for clandestine operations relating to foreign affairs, and John Quincy Adams filed a deposition in the same matter. Abraham Lincoln likewise testified voluntarily at a congressional hearing (the committee was investigating alleged leaks to the press by Mrs. Lincoln), and Theodore Roosevelt twice testified without compulsion before congressional committees regarding his campaign finances and a steel company acquisition at a time when he was an ex-President.

 3. In the context of the Watergate affair, President Richard Nixon was subpoenaed both by the prosecution and by the defense in the ensuing criminal trial of some of his appointees, but the President was ultimately excused on account of his ill health. United States v. Mitchell, 385 F. Supp. 1190 (D.D.C. 1974), aff'd sub nom. Maryland v. Haldeman, 559 F.2d 31, 80-81 (D.C.Cir. 1976) (en banc). However, President Nixon was deposed pursuant to judicial process in connection with several civil actions. *fn11" President Gerald Ford testified under compulsion by videotaped deposition in the criminal trial of Lynette Fromme who sought to assassinate him, *fn12" and he also provided testimony before a congressional committee regarding his pardon of Richard Nixon. Finally, President Jimmy Carter, while in office, provided videotaped depositions in the criminal trial of State Senator Culver Kidd and Sheriff Buford T. Lingold on gambling conspiracy charges, and for a grand jury investigation of an alleged White House attempt to quash extradition proceedings against an international fugitive. *fn13"

 In any event, any question as to the power of a court to require a President to testify was laid to rest in United States v. Nixon, 418 U.S. 683, 713 (1974), where the Supreme Court decided that "when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial." See also, Marbury v. Madison, 1 Cranch (5 U.S.) 137, 2 L. Ed. 60 (1803).

 II

 Standard to Be Applied

 Since it is settled that a President, whether former or incumbent, may be subpoenaed to be a witness in judicial proceedings in an appropriate case, the next question is what standard should be applied in deciding whether in the instant case defendant's subpoena for President Reagan should be honored, considering inter alia, the fact that no claim of executive privilege has been advanced. *fn14"

 Defendant argues that a claim of executive privilege is an absolute prerequisite to a deviation from the standard applied to witnesses generally. In the absence of a privilege claim, it is said, the President is with respect to a subpoena like any other citizen. As discussed below, that position is not well taken.

 Equally erroneous is the argument of counsel for former President Reagan and Department of Justice counsel acting on behalf of President George Bush (hereinafter at times referred to collectively as the "Reagan-Justice Counsel"). Reagan-Justice Counsel assert that, in addition to showings of relevancy, materiality, and other incidents of admissibility, defendant is required to demonstrate that the testimony of the former President will be central to his defense, and that a substitute from any other source would be inadequate. *fn15" However, the precedents cited for this proposition do not support it. *fn16" The proposed standard would be extraordinary even in a case where executive privilege has been invoked; it is particularly so in a non-privilege situation. Moreover, if the argument were correct, it would be as easy, or as difficult, to subpoena a President who had claimed executive privilege as one who had not. *fn17" That is not the law.

 As for the broader dispute between the parties, here again, history and the precedents do not teach an unambiguous lesson. In Nixon v. Sirica, 487 F.2d 700, 711 (D.C.Cir. 1973), the Court of Appeals stated that "the Constitution makes no mention of special presidential immunities. Indeed, the Executive Branch generally is afforded none. This silence cannot be ascribed to an oversight. . . ." Likewise, in Burr, Chief Justice Marshall noted that "the propriety of introducing any paper into a case, as testimony, must depend on the character of the paper, not on the character of the person who holds it." 25 F.Cas. at 34.

 On the other hand, in United States v. Nixon, 418 U.S. at 702, the Court stated *fn18" that in the instance of a President, appellate review -- and thus presumably also trial court action -- should be particularly meticulous, in deference to a coordinate branch of government, to ensure that the standards of Rule 17(c) have been correctly applied. Moreover, whatever may be said about the undue breadth that the Reagan-Justice Counsel ascribe to them, see note 16, supra, the Haldeman and Ehrlichman decisions do imply that a subpoena to an incumbent or a former President should be scrutinized with a sharper eye and held to a higher standard than one to an ordinary citizen. *fn19"

 Although support for the position advocated by the Reagan-Justice Counsel is thus far from overwhelming, indeed relatively sparse, the Court will apply a rule that is sympathetic to President Reagan's position. While the former President has not claimed executive privilege, he will only be compelled to testify at the trial of this case if the Court is satisfied that his testimony would be material as tested by a meticulous standard, *fn20" as well as being necessary in the sense of being a more logical and more persuasive source of evidence than alternatives that might be suggested. *fn21" The Court will do so essentially for two reasons.

 Second, application of a rule absolutely requiring a claim of executive privilege at this stage as a prerequisite to judicial care in evaluating the subpoena would make little practical sense under the facts of this case. Since the defendant associated with President Reagan in several different contexts and had discussions with him on many different topics, it is conceivable that, with respect to some of these associations and discussions, a claim of privilege could validly be made, while with regard to others the claim would be unsound. *fn22" In view of that situation, it would hardly do to require the former President to claim executive privilege with respect to the entire inquiry (even as to questions to which it would not properly apply) or be deemed to have waived it altogether. This is so particularly since, as the Supreme Court has instructed, executive privilege should not "be lightly invoked." United States v. Reynolds, 345 U.S. 1, 7 (1953).

 III

 Defendant Has Made the Requisite Showing

 In order to facilitate a meticulous review of the subpoena, the Court has required the defendant to submit a list of the specific questions he wishes to ask the former President, and to serve copies of these questions on the former President and the Department of Justice acting on behalf of the incumbent President, so as to afford them the opportunity to litigate whether the ...


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