Watergate Issues, 2 Must a President Testify?

Looming above the Watergate crisis is the possibility of President Nixon being summoned before some investigatory body to answer questions about his actions. No sooner was the matter broached late last month than a White House spokesman angrily declared that such summons would be rejected as "constitutionally inappropriate." Perhaps, but Presidents Washington, Lincoln and Wilson all agreed to appear before Senate groups to answer questions, and Senator Sam Ervin has wondered why such answers could not be compelled--at least in the proper circumstances. "If we were engaged in a war," he said, "and some judge in, say, Guam subpoenaed the President in a crap-shooting case or something, then I can see the high court overturning the subpoena." But in the case of a Senate hearing, he added, "I can't see how the President would be inconvenienced."

Ervin said he himself had no such present plans. But in a Supreme Court decision last June requiring reporters to testify before grand juries, Justice Byron White dropped a now much-referred-to quotation from Jeremy Bentham: "Were the Prince of Wales, the Archbishop of Canterbury and the Lord High Chancellor to be passing by in the same coach while a chimney sweeper and a barrow-woman were in dispute about a halfpennyworth of apples, and the chimney sweeper or the barrow-woman were to think proper to call upon them for their evidence, could they refuse it? No, most certainly."

White went on in his footnote to say that the great Chief Justice John Marshall had once ruled "that in proper circumstances a subpoena could be issued to the President." Upon closer examination, Chief Justice Marshall's opinion is not quite so clear. While he did subpoena President Thomas Jefferson to produce a letter he had received, for use by Aaron Burr in his treason trial, Marshall's language was elaborately conciliatory and courteous. As for Jefferson, he asserted that the court had no right to compel information, but he did voluntarily supply an edited version of the letter.

Given that sort of precedent, there were few certainties last week when the issue reappeared in more acute form.

Ervin's committee was considering a subpoena of White House logs listing the disputed meetings between Nixon and Counsel John Dean. The White House first refused to turn over the logs --a move it once again called "constitutionally inappropriate"--then, after a change of heart, the Administration agreed to produce the documents.

Can the President, in fact, be forced to honor a subpoena? Constitutionalists are to be found on all sides of the issue.

But a starting point is the relatively well-established principle that the President cannot be sued merely because he has the ultimate responsibility for some governmental action that is being challenged. This was designed to avoid unnecessarily disturbing him "in the performance of his duties," as one court decision put it. But this leads to a counterargument. As Harvard Law Professor Alan Dershowitz observes, "When the President's conduct is the key issue, the President has the least viable excuse for ignoring a subpoena. This is especially true if the conduct in question is unrelated to his Executive duties. With Watergate, Nixon's action might well be construed to be unrelated to performing the duties of the President. Rather, he was acting as a candidate."

Legal Limit. Presidents have traditionally argued that the decision-making process would be jeopardized if top Administration officials are subject to questioning. A distinction can be made, however, between advice and action.

According to Nathan Lewin, a constitutional lawyer who teaches at the Georgetown University Law Center:

"The presidential exemption clearly evaporates if what is needed is the President's eye-witness testimony or if what is challenged is an action that he personally initiated or commanded."

Nice as these distinctions may be, the crux of the matter is that if the President does not want to comply with a subpoena, there is precious little that can be done. Underlying the whole problem is the question of whether and how much the law applies to the President at all. In ordinary matters, of course, it does. He must pay his taxes and catch no more than the legal limit of trout (though Eisenhower used to break that one). "If the President shot the Chief Justice," says Harvard Legal Historian Raoul Berger, "he could be tried in ordinary criminal court."

Aside from some such obvious crime, though, any threat from the courts about the President's official conduct seems pale, pragmatically speaking, when compared to the basic sanction of public opinion. That could change. Just before Watergate split wide open, President Nixon was claiming a broad version of Executive privilege and saying, "Perhaps this is the time to have the highest court of this land make a definitive decision with regard to this matter." With the President thus implicitly willing to abide by the result, this may indeed be the time.

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