“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:
[I]t is also settled that the President is subject to judicial process in appropriate circumstances. Although Thomas Jefferson apparently thought otherwise, Chief Justice Marshall, when presiding in the treason trial of Aaron Burr, ruled that a subpoena duces tecum could be directed to the President. United States v. Burr, 25 F. Cas. 30 (No. 14,692d) (CC Va. 1807). 38 We unequivocally and emphatically endorsed Marshall’s position when we held that President Nixon was obligated to comply with a subpoena commanding him to produce certain tape recordings of his conversations with his aides. United States v. Nixon, 418 U.S. 683 (1974). As we explained, “neither the doctrine of separation of powers, nor the need for confidentiality of high level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Id., at 706. 39
Sitting Presidents have responded to court orders to provide testimony and other information with sufficient frequency that such interactions between the Judicial and Executive Branches can scarcely be thought a novelty. President Monroe responded to written interrogatories, see Rotunda, Presidents and Ex Presidents as Witnesses: A Brief Historical Footnote, 1975 U. Ill. L. F. 1, 5-6, President Nixon–as noted above–produced tapes in response to a subpoena duces tecum, see United States v. Nixon, President Ford complied with an order to give a deposition in a criminal trial, United States v. Fromme, 405 F. Supp. 578 (ED Cal. 1975), and President Clinton has twice given videotaped testimony in criminal proceedings, see United States v. McDougal, 934 F. Supp. 296 (ED Ark. 1996); United States v. Branscum, No., LRP-CR%96-49 (ED Ark., June 7, 1996). Moreover, sitting Presidents have also voluntarily complied with judicial requests for testimony. President Grant gave a lengthy deposition in a criminal case under such circumstances, R. Rotunda & J. Nowak, Treatise on Constitutional Law �7.1 (2d ed. 1992), and President Carter similarly gave videotaped testimony for use at a criminal trial, ibid.
In sum, “[i]t is settled law that the separation of powers doctrine does not bar every exercise of jurisdiction over the President of the United States.” Fitzgerald, 457 U.S., at 753 -754.
So, what can we take from the lesson of President Clinton and his tryst with the effervescent Ms. Jones? Well, unlike Clinton, Obama is not being sued. He is a witness. Just as Chief Justice Marshall compelled items from President Jefferson for purposes of the treason case and Aaron Burr, it is not too far a stretch to argue Obama could be compelled to testify, at some point, in the matter should civil suits fly. For purposes of this hypothetical, it does not matter when the president testifies — only that he is a witness that could testify. Why his attorneys allowed these conversations to take place and are allowing for future evidence to surface during the Obama Beer Festival is simply beyond me from a legal point of view. From a political point of view however, I think we all get it. Maybe. Obama is in a tough spot at a minimum. A spot, he put himself into.
Think about it. It does not take a lawyer to realize that Obama has critical and relevant information. The lawyer for Crowley would be an utter fool to not attempt to secure that evidence. Likewise, the attorney for Gates would be derelict in his duties to ignore the statements Crowley made to the president. The Clinton case provides examples of other presidents over the course of American history either testifying or at some being compelled to produce items (that’ what a subpoena duces tecum is). President Jefferson apparently had some item or document The United States Supreme Court demanded. Carter, Ford, George H.W. Bush, and other Presidents have provided evidence — or in the case of Nixon, provided evidence because he was too stupid to destroy it.
Regardless, President Obama is a witness. Should civil cases come to fruition — people are going to want to know what was said in every phone conversations. Lawyers will completely dissect each and every moment of the Big Beer Brew Ha Ha. It is not patently absurd to surmise that Crowley and/or Obama will stick their guns and stubbornness. Unlike the gunfight at the O.K. Corral, disputes are settled in court (at least that’s where they are supposed to be resolved) and not with the quick draws from the likes of modern day Doc Hollidays and Wyatt Earps. Whether the president would have to testify while he sits in office is not really pertinent to this discussion. The only conclusion one can justly reach is simple: The President is now a potential witness.
That being said, Obama is trying to avoid this situation. Society, as most would claim, is too litigious as it is, and the president’s intent is novel and healthy. The problem with the aforementioned premise is it assumes people have benevolent motives and are mentally healthy. If this conundrum deconstructs and the lawyers come marching in, Obama’s gonna be cryin’ for his “mama.”
Quite possibly, Mr. Obama’s political maneuver could very well blow up… in his face.
Tags: Aaron Burr, Alexander Hamilton, Bill Clinton, Cambridge Police, Chief Justice Marshall, Clinton v. Jones, Crowley Sues Gates, Damn Lawyers, Gates Sues Crowley, Immunity, Jimmy Carter, Paula Jones, President Obama, Prof. Gates, Race, Racial Profiling, Richard Nixon, Sgt. Crowley, Sue You!, Thomas Jefferson, Witness To Stupidity