A misleading viral headline on Facebook suggests that a judge has given the thumbs-up for President Donald Trump to face a subpoena in a case related to his private businesses.
"Breaking: federal judge grants permission to subpoena Trump," stated a Nov. 29 headline on news.groopspeak.com.
Facebook users flagged the post as being potentially fabricated, as part of the social network’s efforts to combat fake news. While the headline is wrong, it is based on an actual ruling by a judge. We sent a message to the website but did not get a reply.
The article linked to a Nov. 29 article in the Washington Post about a federal judge’s ruling in a lawsuit brought by two Democratic attorneys general against Trump. The lawsuit alleges that Trump violated anti-corruption clauses in the Constitution because he benefits financially from his hotel, resort and golf properties.
The emoluments clause of the Constitution says that no officer of the United States can accept gifts, titles or emoluments (salary) from a foreign government, without permission from Congress.
On Nov. 28, U.S. District Court Judge Peter J. Messitte ruled that that D.C. Attorney General Karl A. Racine and Maryland Attorney General Brian E. Frosh can serve subpoenas requiring Trump-owned companies to preserve documents.
The Post described the decision as "a small advancement" in the case.
We read Messitte’s two-paragraph decision and saw nothing that addressed Trump himself being subpoenaed. Here is the main part:
"It is hereby ordered that the parties shall be permitted to serve subpoenas on third-parties for the sole purpose of preservation of documents," the judge wrote.
We asked a spokeswoman for the Maryland attorney general if the ruling stated that the plaintiffs could subpoena Trump.
"No, it only relates to preservation of documents," Raquel Coombs said.
Robert Marus, a spokesman for the D.C. Attorney General, told PolitiFact that the ruling allows the plaintiffs to serve document preservation subpoenas on the Trump-owned companies in preparation for moving to the discovery phase of the lawsuit against President Trump.
"Those entities are not parties to this litigation, which means they would not normally be required to preserve documents. However, their records may be relevant to the case, which is why we asked the court for special permission to subpoena them to preserve these documents," Marus wrote.
Parties to litigation -- in this case Trump in his official capacity -- do not have to be subpoenaed to preserve documents, Marus said.
A spokeswoman for the U.S. Justice Department pointed to a court document filed on behalf of Trump in which the defendant argued that while a motion to dismiss is pending there shouldn’t be any discovery.
For the record, a sitting president can be subpoenaed, said Berkeley Law Dean Erwin Chemerinsky.
"Richard Nixon had documents subpoenaed, and the Supreme Court upheld this," he told PolitiFact.
A headline stated that a "federal judge grants permission to subpoena Trump." A federal judge made a ruling about the preservation of documents in a case, but the subpoenas pertain to third-parties, not Trump individually.
We rate this headline False.