Word: subpoenae
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...simultaneously petitioned the U.S. District Court to compel the President to "show cause" why he should not comply with his subpoena. "Our view," said Cox, "is that the argument [based on the separation of powers] is not legally sound." Executive Branch employees have long been subject to subpoena by grand juries, he noted, adding that ever since Marbury v. Madison* the Executive has been accountable to the courts, "and this is merely a specific application of that principle." With appropriate irony, Cox's petition was heard by Judge John Sirica, who tried the original Watergate Seven last winter...
Dark Area. What makes the current legal question so difficult is that, as the University of Chicago's Philip Kurland observes, the President and Congress are clashing "in a dark gray area where there are no judicial precedents." Never before has Congress subpoenaed a President. Only once has the Judiciary Branch issued a subpoena to a President. That was in 1807, when Chief Justice John Marshall, performing his collateral role as a district-court judge in Richmond, was trying Aaron Burr for treason. Burr wanted Thomas Jefferson to produce letters written to him by one of the prosecution witnesses...
Ervin is fond of citing a subpoena for certain papers and testimony issued to President Thomas Jefferson. But Jefferson's information was sought not by Congress but by a court for the criminal trial of Aaron Burr on treason charges. The situation is different when the Legislative Branch is locked in direct conflict with the Executive. Only last year Justice William O. Douglas argued that it is "no concern of the courts, as I see it whether a committee of Congress can obtain [an Executive Department document]. The federal courts do not sit as an ombudsman, refereeing the disputes...
...area of direct judicial concern. Though Cox originally announced that he had been assured full White House cooperation, there has in fact been foot-dragging on many requests. Cox has already filed a written request for the Nixon tapes, and, should Nixon eventually ignore a grand jury subpoena in that investigation, he might well run head-on into his own law-and-order majority on the Supreme Court...
...legislative affairs, Justice Byron White observed for the majority that "the so-called Executive privilege has never been applied to shield Executive officers from prosecution for crime." In another case requiring newsmen to answer grand jury questions, White, again for the majority, indicated that "in proper circumstances a subpoena could be issued to the President of the United States." And in the Pentagon papers case, Chief Justice Warren E. Burger criticized the New York Times for failing "to perform one of the basic and simple duties of every citizen" when it became aware of stolen property. "That duty...