Next week, the Supreme Court will hear lawyers argue the president's claim that he has absolute immunity while in office, write law professors Claire Finkelstein and Richard Painter.
"What is at stake is no less than the accountability of a president to the rule of law... 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."
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.
Moreover, his claim conflicts with the administration’s position in another recent Supreme Court case over states’ rights, Kansas v. Garcia. The administration’s solicitor general had sided with Kansas against an immigrant’s claim that federal immigration law prevented Kansas from prosecuting him for identity theft.
The same should apply in Trump v. Vance: The Constitution gives the Manhattan district attorney broad latitude to investigate possible financial misconduct of businesses headquartered in New York unless federal law expressly forbids it. No federal law does.
The authorities usually cited for the proposition that a sitting president cannot be indicted are two Justice Department 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.
In a March 27 brief to the court, the president’s lawyers provided a new twist — that it is even more important not to distract the president given the Covid-19 crisis, as “the nation requires the president’s undivided attention.” But as Justice Antonin Scalia observed in the oral arguments in Clinton v. Jones, when a president is so busy “that he’ll never be seen playing golf for the rest of his administration,” then, and only then, should the court worry whether subpoenas would interfere with his ability to do his job.
Requiring Mr. Trump’s accountants to comply with the New York subpoena surely would not interfere with the president’s management of the Covid-19 crisis, if he has bothered to manage it at all. Even President Franklin Roosevelt would have had no immunity argument had he faced a similar third-party subpoena after Pearl Harbor in 1941.
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, 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.
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.
Claire O. Finkelstein a professor of law and philosophy at the University of Pennsylvania, where she is the faculty director of the Center for Ethics and the Rule of Law. Richard W. Painter is a professor at the University of Minnesota Law School and was the chief White House ethics lawyer under President George W. Bush.