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The law's reach to the presidency

May the courts compel a president to testify? The question has been with us since the early days of the Republic.

The law's answer is made plain again by former President Reagan's

appearance before video cameras, Friday in Los Angeles, to testify in the case of John Poindexter.

Poindexter, who was the Reagan national security adviser for a year in 1985-86, is to go on trial shortly on Iran-Contra charges.

He is accused of obstructing congressional investigations and making false statements about arms sales to Iran and aid to the Nicaraguan Contras.

His lawyers subpoenaed Reagan to testify at the trial in Washington. Reagan at first resisted, but in the end he agreed to testify in the modified way ordered by Federal District Judge Harold H. Greene, on videotape.

He was yielding, one could say, to the compulsion of history.

Two cases 167 years apart showed that the law could reach into the White House. Both, as it happens, involved disgraced political figures: Aaron Burr and Richard Nixon.

Burr was Thomas Jefferson's vice president from 1801 to 1805. In 1807, after a mysterious armed adventure in the West, he was tried for treason. Claiming that secret government orders would show him innocent, he subpoenaed President Jefferson.

Chief Justice John Marshall, sitting as trial judge in the case, said that the Constitution and laws gave a defendant the right "with no exception whatever" to subpoena witnesses on his behalf.

Jefferson agreed to testify, and his attorney general produced relevant portions of documents demanded by Burr. (Burr was acquitted, though not because of anything in the Jefferson testimony or documents.) The Nixon case had sharper consequences.

On July 24, 1974, the Supreme Court held that the courts were entitled to certain White House tapes for use in Watergate-related prosecutions.

Sixteen days later, rather than face impeachment and conviction, President Nixon resigned.

Presidents have a right to confidentiality in carrying out their duties, the Supreme Court said. But that "generalized interest" must "yield to the demonstrated, specific need for evidence in a criminal trial."

Poindexter's lawyers, then, had to persuade Greene that there was "a specific need" for Reagan's evidence.

They did that by arguing, among other things, that a jury might find Poindexter lacking the intent to commit a crime if the president had told him everything he was doing was legal.

Greene said that when presidents had been called on for evidence in civil and criminal cases - about half a dozen times in addition to the Burr and Nixon landmarks - courts had sought to limit the burden on them.

In the end, no president has actually had to appear at a trial. He ordered the videotaped hearing in Los Angeles in part as a convenience to Reagan.

But Greene rejected arguments by the Reagan lawyers and the Justice Department that Reagan should be made to answer only written questions. The answers would doubtless be prepared with the help of staff, he said, and a defendant "fighting for his reputation and his liberty" was entitled to "penetrate the presidential curtain" - to have a jury see Reagan answer on his own.

But at least the royal view of the presidency has been rejected by the courts once again.

The United States does not subscribe, Greene said, to "the doctrine of the divine right of kings."

New York Times

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