The other day, I watched the final moments of the hearings of the January 6 committee when they voted unanimously to subpoena former President Donald Trump to answer to the charges that he played a role in the events that led to the insurrection at the U.S. Capitol in an effort to overturn the election. Commentators after the fact kept using the phrase, "Unprecedented."
Historically, however, we have been here before.
In 1862, in the middle of the Civil War, the House Judiciary Committee looked into how a message from President Abraham Lincoln had leaked to the press. Rumor had it that first lady Mary Lincoln had passed it to a middleman, but the middleman refused to say. Then a surprise witness showed up to answer the committee’s questions: Lincoln himself. The leaker was soon identified as a White House gardener.
Lincoln apparently testified voluntarily, but other presidents and ex-presidents have received subpoenas compelling them to testify before Congress, in civil and criminal proceedings, and even before a military tribunal. Former president Donald Trump joined this group Thursday when the House January 6 committee voted unanimously to subpoena him.
Law professor Ronald D. Rotunda, who died in 2018, served on the Senate committee investigating President Richard M. Nixon in the 1970s and dug deep into the history of presidents and subpoenas. Here is what he found.
In 1846, the House began investigating a former secretary of state, Daniel Webster, who had served under presidents John Tyler and John Quincy Adams, for misuse of funds. The sitting president, James K. Polk, gave a limited amount of information about the funds to the House but did not think it would be proper to “publicly reveal confidences of his predecessors,” according to Rotunda.
Congress convened two select committees and subpoenaed both former presidents. Tyler complied, testifying before both committees, and Adams filed a deposition. James Buchanan, a future president who was secretary of state at the time, was also subpoenaed and testified. Webster was cleared of wrongdoing.
In 1953, former president Harry S. Truman refused to comply with a House subpoena after he was accused of knowingly appointing a Russian spy to a position while in office. The House Un-American Activities Committee, vociferously engaged in interrogating anyone and everyone for alleged communism, subpoenaed Truman. He refused to comply, instead giving a national broadcast denying the accusation. The House did not push the matter.
Truman’s refusal is “troublesome, and not entirely defensible,” Rotunda wrote. Two decades later, Nixon cited Truman when he refused to appear before the congressional committees investigating the Watergate scandal or to comply with a special counsel subpoena demanding tapes of White House conversations. Then he provided only some of the requested material, in edited form. The Supreme Court unanimously ruled against Nixon, demanding he turn over all of the materials. He resigned two weeks later. His successor, Gerald Ford, pardoned him a month later, making the subpoena issue moot.
Other presidents, including Thomas Jefferson, James Monroe and Bill Clinton, have been subpoenaed - not before Congress but in civil, criminal and military proceedings.
Jefferson was subpoenaed to provide documents and to testify in the treason trial of his former vice president, Aaron Burr. He produced some of the requested documents but refused to testify, saying he was too busy as president to comply. (This move was upheld by the Supreme Court, giving rise to the concept of “executive privilege.”)
In 1818, Monroe was summoned to testify in the court-martial of a Navy doctor, who had allegedly engaged in misconduct to get an appointment. Monroe hemmed and hawed, citing Jefferson and claiming he could not travel from the seat of government to testify. He eventually submitted a written deposition. By the time it arrived, the case had been dismissed.
In 1875, President Ulysses S. Grant ignored the advice of his aides and went to St. Louis to testify on behalf of a close friend accused of fraud. The friend was later acquitted.
And, of course, there is Bill Clinton, who in the 1990s challenged the subpoena in a sexual harassment lawsuit against him. He eventually relented and submitted to a deposition.
Other than Lincoln, a couple of presidents have volunteered to appear before Congress, Rotunda noted. Ford appeared before a House committee looking into his pardon of Nixon, and Theodore Roosevelt testified before congressional committees twice after leaving office, providing details about a questionable U.S. Steel deal and about corporate donations to his 1902 presidential campaign.
Roosevelt was unbothered, saying, “[A]n ex-president is merely a citizen of the United States, like any other citizen, and it is his plain duty to try to help this committee or respond to its invitation.”
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