There has long been serious debate within legal and constitutional circles over whether or not a sitting president can be forced to comply with a subpoena. The short answer is, no one knows for sure because the constitution isn’t clear and no judge has ruled to set precedent one way or the other.
Ken Starr, the special prosecutor who investigated Bill Clinton in the 1990s, issued a subpoena in that case, but later rescinded it when the president’s lawyers negotiated a compromise. Since then, the question has remained a hypothetical one.
In the Trump era, however, the issue has moved very much to the front burner, as multiple investigations and scandals swirling around the White House have raised the prospect that the president would have to be deposed.
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Special Counsel Robert Mueller is grappling with a subpoena for President Trump as we speak. He’s trying to thread the needle between forcing the issue into the courts on the one hand, and negotiating with President Trump’s lawyers to come to some agreement similar to the one Ken Starr made with President Clinton. He’d rather not have to issue a subpoena, but the president may not give him a choice.
While Mueller wrestles with this issue in the Russian collusion case, lawyers for Colin Kaepernick – the former NFL quarterback who started the practice of kneeling during the playing of the anthem before games as a way to raise awareness to police brutality against people of color – aren’t waiting for constitutional scholars to come to a consensus on the presidential subpoena.
“Kaepernick’s legal team is expected to seek federal subpoenas in the coming weeks to compel testimony from Trump, Vice President Mike Pence and other officials familiar with the president’s agenda on protesting NFL players,” Yahoo Sports reported Thursday.
Kaepernick is suing the NFL for blacklisting him for his role initiating the protest movement. He believes owners have conspired and colluded to keep him off of the rosters of all 32 teams. While owners have had a problem with the protests long before Trump took office, the president added fuel to the fire with his incessant attacks on players who kneel and owners who allowed it.
Last month, portions of the deposition given by Dallas Cowboys owner Jerry Jones were leaked to the Wall Street Journal, and he made it clear that the president was intimately involved in the owners’ decision making.
During one phone conversation, President Trump told Jerry Jones, “This [attacking players who protest] is a very winning, strong issue for me. Tell everybody, you can’t win this one. This one lifts me,” according to Jones’ deposition given under oath.
More from the Wall Street Journal:
“A White House official said that Mr. Trump was advising Mr. Jones on what he believed would be good for the country and good for the sport. ‘The majority of the American people agree with the president, love our country, love our flag and believe it should be respected,’ the official said.
By bringing the president into the legal case, Jones has inadvertently made him a witness in Kaepernick’s lawsuit. Now the quarterback’s lawyers want to know what Trump knew about the owners’ handling of the matter, and when he knew it.
The prospect of the president sitting for a deposition in this case, either under subpoena or voluntarily, remains minutely small. But at least, while Mueller necessarily attempts to tiptoe his way around the subpoena questions, it’s refreshing that lawyers in the other cases against this corrupt president aren’t afraid to challenge his sense of unfettered authority.