Does Trump have to obey a subpoena to testify in the Russia probe? The answer may not be what you think

Another constitutional controversy was set off when President Trump’s attorney – former New York City Mayor Rudolph Giuliani – said Sunday that the president might refuse to obey a grand jury subpoena.

According to the Wall Street Journal, Special Counsel Robert Mueller threatened to compel the president to sit for questioning about allegations that the Trump campaign or the president himself may have colluded with Russia to influence the 2016 presidential election, or may have engaged in other improper conduct.

But Giuliani argued that President Trump could not be compelled to testify.

“He's the president of the United States,” Giuliani told ABC News. “We can assert the same privilege as other presidents have. President Clinton negotiated a deal in which he didn't admit the effectiveness of the subpoena. (Independent Counsel Kenneth Starr) withdrew it.”

Given the media criticism that has come raining down on Giuliani, a passing observer might think that President Trump – through Giuliani – has devised a brand new challenge to the constitutional order.

But if you thought President Trump was the first president to argue that he did not have to obey a judicial order you’d be wrong.

Guess which president first raised the issue.

President Clinton famously agreed to be questioned over whether he had an affair with intern Monica Lewinsky – but he appeared under a deal with Starr to avoid a subpoena. And he was not the first president faced with this issue.

Some might respond that the first president who said he did not have to obey a judicial order to testify was Richard Nixon, who challenged the right of the courts to demand the Watergate tapes. President Nixon claimed the president has the right to keep secret his communications with other members of the executive branch.

However, the Supreme Court unanimously ordered that President Nixon produce the tapes because the constitutional rights of the Watergate defendants (they argued that the tapes would show their innocence) outweighed the president’s right to confidential discussions.

President Nixon, for the good of the country, obeyed the Supreme Court rather than fight the judiciary’s claim to authority over the chief executive.

OK, so we have to look further back in history – before any of us alive today was born – to find the first president who claimed he couldn’t be forced to testify in a court proceeding.

History junkies might offer Abraham Lincoln, who refused to obey a writ of habeas corpus to free a Confederate leader, John Merryman, at the start of the Civil War. It did not hurt Lincoln’s case that Union forces seized Merryman while he was seeking to force Maryland to secede, and that the judge who issued the writ was none other than the infamous Chief Justice Roger Taney, who had authored the Dred Scott opinion.

Lincoln argued that in time of war, Union forces could seize Confederate officials as prisoners of war, rather than arrest them as criminal suspects, and that the president had the right to interpret the Constitution within its spheres of constitutional responsibility. Lincoln and his generals not only did not release Merryman, but expanded their military detentions throughout the Civil War.

But Lincoln was not the first president to claim the right of executive privilege to refuse court orders.

The first was none other than the founder of the Democratic Party, Thomas Jefferson. President Jefferson’s refusal to appear in court during the treason trial of his former vice president, Aaron Burr, set an important, but unappreciated, precedent for President Trump’s claim today.

In 1806, having been left off the Democratic ticket and been dishonored for his killing of Alexander Hamilton, Burr ventured to the new Western territories of the Louisiana Purchase and attempted to start a rebellion.

Arrested and indicted, Burr appeared at his trial before Chief Justice John Marshall, who was sitting as a circuit judge in Richmond, Virginia at the time. Burr claimed that President Jefferson knew of his plans and demanded presidential documents that might prove his innocence.

Chief Justice Marshall issued a subpoena to President Jefferson, who initially offered to provide information in writing. But Jefferson refused to appear in court, because he said the president’s “paramount duties to the nation at large” required that he not be subject to the judiciary’s every whim.

“To comply with such calls would leave the nation without an executive branch, whose agency, nevertheless, is understood to be so constantly necessary, that it is the sole branch which the constitution requires to be always in function,” Jefferson wrote to the U.S. attorney leading the Burr prosecution.

Jefferson also believed a greater principle to be at stake than just convenience. “The leading principle of our Constitution is the independence of the Legislature, executive and judiciary of each other, and none are more jealous of this than the judiciary,” Jefferson wrote. “But would the executive be independent of the judiciary, if he were subject to the commands of the latter, & to imprisonment for disobedience.”

Jefferson declared the right to withhold information, which, in the president’s judgment, the public interest required to remain secret. Marshall seems to have accepted the argument, but gave instructions to the jury that prompted an acquittal.

Jefferson’s claim of executive privilege puts the current Trump-Mueller struggle in its historical light. While the Supreme Court in U.S. v. Nixon declared that it had the constitutional authority to force the president to obey a subpoena, President Jefferson believed that no branch of government could force one of the others to appear before it.

Under Jefferson’s argument, just as Congress cannot force the president to testify, President Trump could not demand that Chief Justice John Roberts show up in the Oval Office to explain his ObamaCare decisions, which many of us believe were mistaken.

In the same way, President Jefferson’s contention would mean that the courts cannot compel the president or the leaders of Congress to appear before them. This is precisely the issue Giuliani has raised on behalf of President Trump.

So neither the Supreme Court nor Congress has settled the issue raised by President Jefferson and now by Giuliani: whether the president has the authority to ignore a subpoena.

Jefferson’s theory of the equality of the three branches – a theory shared by other great presidents, such as George Washington, Lincoln and Franklin Roosevelt – would support Giuiliani’s claim.

On the other hand, President Jefferson’s example marks out a path that could lower the political and constitutional temperatures. While Jefferson asserted the president’s right to interpret the Constitution in the course of performing his executive functions, he also sought to compromise with his judicial nemesis.

President Jefferson turned over much of what Marshall wanted, though not everything. While President Trump may have the right of executive privilege, and could ignore a subpoena, he should ask himself – as did Jefferson – whether the public interest would be better served if he were to cooperate.

Rather than trigger another constitutional crisis, President Trump could instead put his television instincts to work and agree to a head-to-head interview with Mueller broadcast on live TV. And then the president could decide at the end whether to exercise his other executive power: the power to fire Mueller.