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The agreement to provide private testimony sessions later this month represents a dramatic collision between two fundamentally different views of executive power: whether former officials can claim constitutional protections that shield sitting presidents from legislative demands, or whether ordinary citizens who once held high office must comply with Congress’s power to make laws like everyone else.
The answer, as the Clintons’ case demonstrates, is far more complicated than either absolute immunity or complete vulnerability to legislative demands.
Congress’s Power to Compel Testimony
Congress’s power to compel testimony isn’t explicitly mentioned in the Constitution. Yet the executive branch and legal scholars have consistently recognized that Congress has the power to investigate because the Constitution gives it power to make laws. Without the ability to investigate and compel witnesses to provide information, Congress simply couldn’t function as a co-equal branch capable of checking executive overreach.
Congressional committees may compel testimony and documents on matters ranging from military procurement to public health policy to financial regulation—any area on which Congress might conceivably legislate. A congressional subpoena carries the force of law.
Deliberately refusing to comply can result in criminal charges for contempt of Congress. Congress has historically possessed a power to arrest people who refuse to comply—a rarely used power that comes from the Constitution. The House last used this inherent contempt power in 1916. For the Senate, sources conflict on whether it was last exercised in 1934 or 1935.
A constitutional rule protects Congress when wielding its subpoena power. This constitutional provision shields members of Congress and their official activities from being “questioned in any other Place”—meaning federal courts cannot second-guess or interfere with congressional investigations simply because they concern matters of privacy, involve political motives, or implicate First Amendment concerns.
Congress cannot investigate purely private matters unrelated to legislation or government administration. Congress can’t take over powers that belong to other branches—it cannot investigate who should receive presidential pardons, for example, since that power belongs exclusively to the President. Certain people and certain information may be protected from congressional demands by recognized legal protections and constitutional rules.
Executive Privilege and Its Limits
Executive privilege—the power to keep information secret—is the most important protection for presidents and their closest advisers. Though not mentioned in the Constitution, the Supreme Court has recognized it as a rule based on the idea that government power should be divided among branches.
It’s less clear what executive privilege covers after a president leaves office. Legal scholars have argued that a former president could claim executive privilege to protect official communications, but that such privilege weakens over time and must yield when a sitting president declines to assert it.
This principle came up during the January 6 investigations, when former President Donald Trump attempted to block the House Select Committee investigating the Capitol riot from accessing documents and testimony related to his communications with advisers. The Biden administration determined that asserting executive privilege was not in the nation’s interests and that the Committee’s need for the information outweighed any privacy considerations.
When Trump appealed the decision to courts, courts said the sitting president’s decision matters a lot in such disputes. Because only the sitting President is “responsible for running the executive branch,” he is “in the best position to assess the present and future needs of the Executive Branch.”
Bill and Hillary Clinton’s legal position in their initial refusal to testify rested on a similar but different legal argument: that executive privilege might protect their testimony regarding their work in the Clinton administration, or that they might invoke some broader principle of immunity from compelled congressional testimony.
However, the House Oversight Committee’s investigation focused on the January 6 events and related matters concerning their knowledge of government operations during that period. This distinction—between seeking testimony about official duties versus testimony about private knowledge or activities—weakened any executive privilege defense they might raise.
Testimonial Immunity for Presidential Advisers
Separate from executive privilege, there’s a legal rule about whether the President’s closest advisers can be forced to testify before Congress at all, regardless of what information might be protected. According to this interpretation, those who regularly meet with the President have absolute immunity from being compelled to appear and testify before congressional committees about their official duties.
The reason is based on separation of powers: requiring a president’s closest advisers to appear and testify before Congress would undermine the President’s ability to receive candid advice and maintain confidential decision-making processes. If advisers knew they could be hauled before Congress to answer questions about their recommendations, they might hold back and give less honest advice.
However, this immunity applies most strongly to sitting presidents and their current advisers. The Department of Justice has maintained that immunity from testifying continues even after an adviser leaves office when the testimony concerns their official duties. But courts have rejected this broad immunity claim when applied to former officials.
Courts have said former advisers don’t have complete protection from testifying. Former advisers are required to appear before Congress; they can then assert executive privilege in response to specific questions, but they cannot avoid appearing altogether. Immunity means not showing up at all, while privilege means showing up but refusing to answer specific questions on grounds that the information is protected.
Historical Precedent: Former Presidents Testifying
Former presidents have sometimes testified to Congress, though such instances remain rare. Former President Theodore Roosevelt voluntarily testified before Congress in 1911 regarding U.S. Steel and antitrust matters.
Harry Truman presented a cautionary case. Truman wrote that letting Congress summon former presidents for questioning about their official actions would violate the principle that branches of government should stay separate and allow Congress to use investigations for political attacks.
More recently, former President Richard Nixon was subpoenaed twice in connection with the Watergate scandal—once by the Senate and once by the House Judiciary Committee. Nixon initially resisted providing documents and released only edited transcripts; he provided actual tapes only after the Supreme Court unanimously ruled against his executive privilege claims and ordered full compliance.
Gerald Ford chose to testify to a House committee in 1974 to explain his pardon of Nixon, an appearance that demonstrated that a former president could choose to cooperate when circumstances aligned.
History shows no clear rule about whether former presidents must testify. Instead, it’s been a mix of cooperation, negotiation, legal claims, and politics.
Congress Revives Contempt Prosecutions
When Congress decides someone deliberately refused to obey a subpoena, it can start contempt proceedings in several ways. The simplest way is a formal vote by a chamber or committee declaring the person in contempt, then sending the case to the Justice Department for potential criminal prosecution.
Congress has started using criminal contempt charges again after decades of not doing so. In 2021, Steve Bannon, a former adviser to President Trump, was convicted of criminal contempt of Congress for refusing to comply with a subpoena from the House Select Committee investigating the January 6 Capitol riot. A judge sentenced Bannon to four months in prison. Peter Navarro, another Trump adviser, followed a similar trajectory, convicted and imprisoned for contempt in 2023. These were the first contempt convictions in over eighty years.
However, the Justice Department has refused to prosecute contempt charges against high-level executive branch officials when they claim the President ordered them to keep information secret using executive privilege. In 2019, Attorney General William Barr refused to release the full, unblocked copy of the Mueller Report to Congress, and after a House vote holding him in contempt, the Justice Department refused to charge him, saying it won’t prosecute executive officials who refuse to provide information subject to a presidential assertion of executive privilege.
Congress also has a constitutional power to punish people for ignoring it through inherent contempt—a rarely used power that allows Congress to have its police arrest someone and hold them until they comply. Congress can also ask a court to order someone to comply, which avoids depending on prosecutors who might refuse to press charges for political reasons, though court cases take a long time.
The Clinton Case
The House Oversight Committee issued subpoenas to Bill and Hillary Clinton in August 2025, directing them to testify about their relationship with Jeffrey Epstein and their knowledge of his criminal activities.
The committee said Bill Clinton had a close relationship with Epstein from the early 1990s through the early 2000s, including flying on Epstein’s private jet four times. The committee wanted to know what the Clintons knew about the sex-trafficking operation run by Epstein and Ghislaine Maxwell and whether they used those relationships to help cover up the crimes.
The Clintons’ lawyer David Kendall said the subpoenas weren’t legally binding and accused the committee of a partisan investigation designed to harm them.
Over the next few months, the Clintons tried to negotiate, proposing Bill Clinton answer questions in writing instead of testifying in person. The committee chairman refused and demanded he testify in person on video.
In January 2026, Bill Clinton failed to appear for his scheduled testimony, instead claiming he had nothing important to tell them. The committee moved forward with contempt charges, scheduling a House vote for noon on February 3.
Both Democrats and Republicans supported the contempt charges—nine Democrats on the committee voted for it, showing this wasn’t purely partisan.
The Clintons agreed to testify in private—Hillary on February 26 and Bill on February 27. The Clintons requested public hearings instead, but the chairman insisted they remain private.
Why Legal Defenses Failed
The Clintons probably agreed because their lawyers realized that no legal rule would protect them from being charged with contempt.
Neither executive privilege nor immunity would have protected them when the testimony was about personal relationships. A former president is treated as a private citizen, and regular people must testify unless a legal privilege applies, like attorney-client privilege or spousal privilege.
Supreme Court cases established that presidents and former presidents can be sued for private actions when the lawsuit concerns actions taken before they became president or after they left office. In Clinton v. Jones, the Supreme Court said he couldn’t avoid being sued for private actions while president. While the ruling was narrow and didn’t directly address Congress, it said a president can’t use his office to avoid legal accountability for private actions.
Going to trial on contempt charges posed several risks. If they’d been charged with contempt, the government would need to prove they deliberately refused to comply. The Clintons would probably argue they tried to negotiate in good faith and made legal arguments that seemed reasonable, even if courts disagreed. A jury might have believed their arguments about good-faith negotiation.
A public trial would have attracted media attention and embarrassed them more than private testimony. Nine Democrats on the committee voted for contempt charges against a former Democratic president, which showed this wasn’t purely partisan. A full House vote probably would have passed, creating an unprecedented and embarrassing situation. The damage to their reputation from being charged with contempt, plus the legal risks, outweighed any benefit from refusing.
Implications for Future Cases
The Clintons’ decision sets a practical precedent: When Congress demands testimony about personal knowledge and threatens contempt charges, a former president must testify. Executive privilege doesn’t shield former presidents from congressional testimony about personal matters.
The case raises questions about the limits of congressional investigations. The committee’s investigation into how the government handled the Epstein case is arguably within Congress’s proper role. Congress can examine how federal agencies handled crimes, decide if new laws are needed, and check if officials did their jobs. However, forcing former presidents to testify about personal relationships with criminals raises concerns that Congress is investigating private lives.
The Constitution ultimately depends on institutions respecting each other’s boundaries rather than on clear rules that always apply. When former presidents refuse, Congress must decide whether to enforce the subpoena or back down. Courts must decide if Congress’s investigation is legitimate and if the information is important enough to require compliance. Presidents must decide whether to resist or comply.
When both parties support contempt charges, the pressure on someone to testify becomes difficult to resist. The Clintons’ decision to testify shows that former presidents don’t have special protection from Congress when Congress pursues contempt charges with bipartisan support.
What’s unclear is whether former presidents will comply in more partisan cases, when one party controls Congress and investigates the other party’s former president for political reasons. The Clintons’ case had enough bipartisan support to avoid appearing purely partisan, but future cases might lack this bipartisan support.
The bigger question—whether former presidents have special protection from testifying—remains unanswered by courts. The Supreme Court has never directly ruled on whether former presidents can refuse congressional subpoenas. Until the Supreme Court rules, the answer will depend on political pressure, the strength of legal arguments, and how much risk someone is willing to take.
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