SCOTUS: on Tuesday, the fate of the Republic hangs in the balance


For you non-lawyers who have been listening to Supreme Court oral arguments over the past week, I hope it has been illuminating about the mystique of oral argument, and no, I don’t mean the unfortunate failure to mute a toilet flush during oral argument last week. That was a first for me as well.

If you have not been listening in, you definitely want to set aside your Tuesday morning to listen in to oral argument in this case, in which the fate of the Republic hangs in the balance:

Tuesday, May 12: Trump finances
10 a.m. ET: Trump v. Mazars consolidated with Trump v. Deutsche Bank AG; Trump v. Vance
These cases involve subpoenas for some of President Trump’s pre-presidential financial records. Two consolidated cases — Trump v. Mazars and Trump v. Deutsche Bank — ask whether Congress has the power to subpoena the president’s personal records except during an impeachment proceeding; Trump v. Vance addresses a New York grand jury subpoena for those same records in the course of a criminal investigation.

The lower courts all ruled against Trump. The Supreme Court’s key precedents on presidential investigations — dating from the Teapot Dome scandal, to Watergate, to Paula Jones’ lawsuit against Bill Clinton — all weigh against Trump. The court rejected President Richard Nixon’s claims of absolute presidential immunity, and said President Bill Clinton could be deposed in a civil case — a greater burden than the production of documents pursuant to a subpoena by a third party in possession of  relevant documents.

There has been good “pregame” commentary ahead of oral argument.

Law professors Claire Finkelstein and Richard W. Painter in an op-ed at the New York Times write, Trump’s Bid to Stand Above the Law:

On Tuesday, the U.S. Supreme Court is scheduled to hear one of the most consequential cases ever considered on executive privilege. Trump v. Vance concerns a subpoena issued by the Manhattan district attorney to President Trump’s accountants demanding the release of tax returns and other financial documents to a grand jury.

What is at stake is no less than the accountability of a president to the rule of law.

Mr. Trump claims that a president has “temporary absolute immunity,” meaning he cannot be criminally investigated while in office. Indeed, in oral argument before the U.S. Court of Appeals for the Second Circuit in New York, his lawyers said that if the president were to shoot someone on Fifth Avenue, he could not be investigated or indicted until after he left office.

If the justices endorse this extreme view, they will make it impossible to hold this president, and all future presidents, answerable in courts for their actions.

Mr. Trump’s legal position contradicts clear Supreme Court precedent. In U.S. v. Nixon, a unanimous Supreme Court ordered President Richard Nixon to turn over Oval Office tapes subpoenaed by the Watergate special prosecutor, Archibald Cox. In Clinton v. Jones, a unanimous court held that a sitting president can be forced to testify in response to a subpoena in civil litigation. Taken together, these cases make it clear that the president is not immune from investigation, whether criminal or civil, while he is in office.

Mr. Trump’s claims of absolute immunity are even weaker than the assertions by Presidents Nixon and Bill Clinton. The subpoena was issued by a state, rather than a federal prosecutor. The 10th Amendment to the U.S. Constitution allows states a certain degree of autonomy in investigating and prosecuting crimes. Although grand jury proceedings are secret, Mr. Vance is probably also investigating whether the president’s company, the Trump Organization, falsely accounted for hush-money payments made in the run-up to the 2016 election to two women who claim they had affairs with Mr. Trump. To deny New York the right to exercise its “police powers” over serious financial crimes should give the court’s conservative justices pause.

In addition, the subpoena was not issued to Mr. Trump, but to Mazars, his accountants. Mr. Trump maintains that the immunity of a sitting president is so strong that it extends to his entire business empire and even to third-party businesses that possess his personal information. By this logic, President Clinton could have blocked a subpoena to Monica Lewinsky’s dry cleaner, had she had one, to prevent it from handing over the infamous blue dress before laundering to the independent counsel investigating him.

Mr. Trump’s legal team asserts that federal law pre-empts state law, arguing that his immunity descends directly from the president’s constitutional authority under Article II of the Constitution. We filed an amicus brief in the case opposing this sweeping assertion of presidential immunity, on the grounds that the language of Article II, the history of its drafting and its subsequent interpretation by federal courts contradict Mr. Trump’s interpretation.

* * *

The authorities usually cited for the proposition that a sitting president cannot be indicted are two Justice Department [Office of Legal Counsel] memorandums. Rather than offering a legal analysis based on Article II, the memos are largely pragmatic, advising that it would be unwise to distract a president with legal processes when he needs to focus on the national interest. As such, these memorandums are merely advice to Justice Department prosecutors. They are not binding in any way on state prosecutors.

I am hoping that the four liberal justices on the court in their opinions finally drive a stake in the heart of these OLC memos as not being binding upon the Department of Justice. These “legal musings” have too frequently been relied upon by the Department of Justice to justify a host of misdeeds by the executive brach.

In a 2009 Minnesota Law Review article, Justice Brett Kavanaugh proposed that Congress enact a statute that would immunize the president from criminal investigation. By suggesting the need for such a law, Justice Kavanaugh implicitly acknowledged that the Constitution alone does not establish presidential immunity. This is the same Brett Kavanaugh, by the way, who sent a memo to his boss at the time, the Whitewater independent counsel, Ken Starr, explaining why he was “strongly opposed” to giving President Clinton any “break in the questioning” in preparing for his deposition on his relationship with Ms. Lewinsky, and who drafted a series of graphic questions for Mr. Starr to ask the president.

Mr. Trump is already making dangerous headway with his theory of absolute immunity. In Committee on the Judiciary v. McGahn, [a panel of] the U.S. Court of Appeals for the District of Columbia Circuit ruled that Congress cannot enforce its subpoenas through the federal courts. Senate Republicans relied on the theory of “absolute testimonial immunity” when they refused to call witnesses in the impeachment trial.

An en banc oral argument of the McGahn case was heard by the D.C. Circuit Court of Appeals on April 28, and a decision is still pending, with an appeal to the U.S. Supreme Court likely to follow to run out the clock. D.C. Circuit Court of Appeals hears oral argument in Don McGahn case.

It is also troubling that the president has availed himself of the “unitary executive theory” in declaring himself the “chief law enforcement officer” of the country, thus asserting a right to ignore the traditional independence of the Justice Department.

If the Supreme Court sides with Mr. Trump in the Vance case and agrees with his other assertions of executive authority, here is where presidential accountability will stand: A sitting president cannot be prosecuted or investigated through the authority of state or federal courts, and he cannot be investigated by Congress or tried in a meaningful way upon impeachment in the Senate. And under Mr. Trump’s broad theory of his authority over the executive branch, a president will be able to press federal agencies into service to hide corruption from public view.

We expect the pull of history, precedent and logic will give the Supreme Court the wisdom to defend the institutions of accountability for our political leaders and safeguard the rule of law.

President Trump’s Twitter nemesis, lawyer George Conway III writes, No one in this country is above the law. The Supreme Court is about to teach that lesson.

Twenty-six years ago, I published my first op-ed. Entitled “‘No Man in This Country … Is Above the Law,’” it addressed news reports that President Bill Clinton planned to claim an immunity from having to respond to Paula Jones’s sexual harassment suit. “In a case involving his private conduct,” I wrote, “a President should be treated like any private citizen. The rule of law requires no more — and no less.”

The piece led to my ghostwriting briefs for Jones, including a Supreme Court brief two years later. The Supreme Court agreed unanimously that Jones could proceed, and, like the op-ed, quoted from the Founders’ debates about the status of the president: “Far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.” Which meant that while a president could be impeached for official misconduct, he “is otherwise subject to the laws” — and therefore could be sued — “for his purely private acts.”

* * *

On Tuesday, the Supreme Court will hear telephonic arguments in three cases addressing whether Trump can keep his tax and financial information from being disclosed, whether from Congress or criminal prosecutors. In Trump v. Vance, which involves a New York state grand jury investigation, Trump’s lawyers argue that, even when it comes to purely private conduct, the presidency insulates him from the legal process.

The case arises from a criminal investigation into the Trump Organization, and it seems there’s plenty worth examining: whether, as suggested by extensive reporting in this newspaper and other outlets, Trump’s businesses may have dodged taxes. And whether Trump’s hush-money payments, made through his lawyer Michael Cohen to porn star Stormy Daniels and former Playboy model Karen McDougal, violated state law. (Cohen pleaded guilty to federal crimes arising from those payments, which the U.S. attorney’s office in Manhattan said were made “at the direction of Individual-1” — Trump.)

The state grand jury subpoenaed the Trump Organization and Trump’s accounting firm, Mazars, seeking tax returns and financial records. Trump sued to block the subpoena to Mazars — on the ground that he’s president. The lower federal courts rejected his pleas, and now he’s in the Supreme Court. Where he will lose — or should.

To say Trump’s argument is frivolous demeans frivolity. Clinton v. Jones dictates the result: The subpoenaed documents have nothing to do with Trump’s presidential duties — zip. That alone does it.

But Trump’s case is even weaker than Clinton’s. At least Clinton was being sued personally. He ultimately had to give evidence himself, which he did (infamously) at a deposition. But because the suit had nothing to do with presidential duties, the Supreme Court said it could proceed.

Here, Trump hasn’t been charged with or sued for anything. He’s not being required to do anything. The subpoenas have been directed at his company and his accountants. They don’t require his time or attention.

Trump’s position stupefies. In essence: Authorities can’t investigate anything touching his personal affairs — including, ahem, payments to pornographic actresses — because he’s president. Think of the logic: Not only does the president enjoy a personal constitutional immunity — his businesses do, too.

It doesn’t matter that Trump challenges a criminal inquiry, while Jones involved a civil suit. Whether a sitting president can be indicted remains unsettled, but Trump hasn’t been charged. In fact, presidents have given evidence in criminal matters many times — including ones touching them personally. Chief Justice John Marshall ordered President Thomas Jefferson to produce documents in Aaron Burr’s treason case. A unanimous Supreme Court ordered President Richard Nixon to turn over the Watergate tapes, and rejected a claim of presidential privilege — in a case in which Nixon was named an unindicted co-conspirator. Clinton provided grand jury and criminal trial testimony in the Whitewater and Lewinsky investigations — matters in which he was potentially a target.

Trump complains nonetheless that letting 50 states conduct investigations involving presidents would endanger the presidency, as well as federal supremacy. A short answer is one the court gave in Jones, where Clinton raised the specter of countless private plaintiffs bringing meritless suits: Courts can address vexatious litigation case by case, and if that doesn’t suffice, Congress can legislate a fix.

A more fundamental answer, though, may be found in an amicus curiae brief in the Vance case, a brief submitted by the Protect Democracy Project and joined by me and 36 other conservatives: “The Constitution is concerned with the supremacy of federal law, not the supremacy of federal officials.”

Likewise, the Constitution is concerned with protecting the presidency, not the person who happens to be the president. That’s because no one in this country is above the law. The Supreme Court is now called upon to teach that lesson once again — even if Trump will likely never learn it.

Even an apologist for Republican presidents, until this one, George Will writes, No president is immune from prosecution. The court has a chance to prove it.

Before congressional Republicans fell in love with their current leader, they embraced a principle from which he claims to be exempt. His Republicans, who believe nothing displeasing to him and everything convenient for him, are now required to believe this: A president should be “categorically immune” to grand jury subpoenas from a local prosecutor even for materials possessed by a third party — materials unrelated to the president’s activities as president.

In 2018, the District Attorney’s Office of New York County, where Donald Trump conducted his businesses before he became a public servant, began investigating possible criminal activities connected with those businesses. In 2019, the office obtained a grand jury subpoena for financial materials, including some tax returns. Trump’s organization balked at producing the tax returns. When the district attorney subpoenaed Trump’s accounting firm for eight years of financial and tax records, Trump claimed absolute immunity as president from any “criminal process,” even when subpoenas are received by a private third party, an accounting firm.

In 1974, the court held (concerning Richard Nixon) that presidents have an “executive privilege” to shield many confidential communications concerning presidential duties. In 1982, the court held (concerning Nixon) that presidents are immune from civil liability for actions taken in office. However, the court has never held that presidents are immune from criminal prosecution while in office, or that they are immune from criminal processes that might lead to prosecutions.

Today’s justices surely regret the perception that the Supreme Court is so politicized that many of its decisions reflect not neutral jurisprudential reasoning but fidelity to the politics of the presidents who nominated the majority of justices. The case to be argued Tuesday gives the court an occasion to mitigate this perception. [Or not.] In 1974, the court, with three Nixon nominees voting in 1974, and in 1997, with two Bill Clinton nominees, unanimously ruled against Nixon and Clinton in separate cases.

Trump argues that anything less than complete immunity from all criminal processes could hinder his performance of his duties and “stigmatizes the President in ways that will frustrate his ability to effectively represent the United States in both domestic and foreign affairs.” Leave aside the grandiose idea that a president — the head of one branch of one of the nation’s many governments — must “represent,” whatever that means, the nation in the complex, churning spontaneity of its domestic life. Nevertheless, the privilege Trump asserts, if validated by the court, would exacerbate the obnoxious tendency of presidents to think of themselves as, and to be perceived as, trailing clouds of glory.

In November, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit ruled unanimously against Trump, holding that state prosecutors can compel third parties to surrender a president’s financial information for use in grand jury proceedings. Chief Judge Robert A. Katzmann’s decision included this footnote: “We note that the past six presidents, dating back to President Carter, all voluntarily released their tax returns to the public. While we do not place dispositive weight on this fact, it reinforces our conclusion that the disclosure of personal financial information, standing alone, is unlikely to impair the president in performing the duties of his office.”

During Clinton’s first term, many congressional Republicans were white-hot supporters of the special committee that investigated the Clintons’ role in the Whitewater land deal in Arkansas before he assumed presidential duties. The committee held 300 hours of hearings that generated more than 10,000 pages of transcripts. The committee’s work was facilitated by its power to subpoena pre-presidential financial records of the then-sitting president. The Clinton presidency was not paralyzed by this, and Congress has not subsequently been promiscuously intrusive in subpoenaing financial records of sitting presidents. It is unlikely that even today’s president, with his unusual business and personal histories, will be immobilized by the needs of the New York district attorney in connection with possible criminality.

Trump’s refusal to release his tax returns invites speculation about what he is hiding. His behavior, however, is primarily germane to assessing a Republican Party that since the Whitewater affair has adjusted its principles about many things, including presidential privileges. Aside from those fluttering chickens coming home to roost, other fowls come to mind: What is sauce for the goose is sauce for the gander.

Pro Tip: Of the five conservative justices on the court, follow the questioning of Chief Justice Roberts and Justice Neil Gorsuch for any sign of wavering from past precedents and an openness to the president’s lawyers frivolous arguments.

This should be a unanimous decision following the precedents of U.S. v. Nixon, and Clinton v. Jones. But I have no faith in Justices Thomas, Alito and Kavanaugh. They are a stain upon the court.

One final note, the Supreme Court is expected to rule by June, but even if Trump loses, disputes over document production could easily keep the relevant documents out of public view until well after the election.


  1. Informed citizens and voters understand our democracy hangs in the balance. Will the uninformed, ignorant or racist vote for a theocracy or democracy? That’s where the answer lies. Truly chilling.

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