“Beer here! Get your ice-cold beer! How about you sir? Or you? Beer? Please? Maybe a nice sparkling wine?”
Unless you have been breathing fresh air and enjoying the forgotten frivolities of life over the past week, in one way or another, you’ve made some sort of stand and are caught in the middle of the pop-off at the Cambridge Corral. President Obama is set to meet with Professor Gates and Sergeant Crowley on Thursday for beers at the White House. All three are poised to shoot the breeze about race relations and learn from this very “teachable moment.” Ironically, the one person who might be taught a lesson in the law of unwittingly becoming a witness is President Obama.
In this not so tepid climate concerning race relations, police misconduct, and alleged unpleasantness hurled at an officer’s “mama,” there is one kernel of veracity everyone can agree on — President Obama is already in the unique position of personally speaking with both parties. Without question, Mr. Obama is a witness to statements made by both Sergeant Crowley and Professor Gates.
This raises a somewhat novel question left unaddressed by every major and minor media outlet in the world (yes, this is a Cube exclusive) — will Obama have to produce sworn testimony as a witness at some point should the legal napalm drop? Yes.
The president is privy to conversations which would absolutely be relevant to any sort of lawsuit launched by either party. Crowley stated he is contemplating suing Gates for “defamation.” Certainly, Gates has a plethora of options if he decides to sue Crowley and the Cambridge Police Department.
The constitutional implications of a sitting president being compelled to testify as a non-party witness (in deposition, interrogatories, or actual live testimony should a trial ensue) are, at a minimum, murky. Issues with regard to immunity would probably arise at the behest of any White House Counsel worth a darn, however, this is not a case where the President is being sued or charged with a crime — he is a witness. This much, one can easily conclude. Furthermore, whether his testimony is taken during or after his term is not an issue. At some point, should a lawsuit hit the court files, President Obama will be a witness. Statements by the parties are unquestionably discoverable under the rules of civil procedure (both federal and state).
As luck would have it, we can look to the case of William Jefferson Clinton v. Paula Courbin Jones for some guidance. In fact, we can go all the way back to the treason case of Aaron Burr when he popped a cap in Alexander Hamilton and killed him in a pistol duel to the death. While not on all fours and barking, Clinton v. Jones speaks to this and other matters concerning the sworn testimony of a sitting president. Justice Stevens cites a few examples of such in our rich history: