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Trump’s Bid to Stand Above the Law
Next week, the Supreme Court will hear lawyers argue the president’s claim that he has absolute immunity while in office.
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.
http://archive.is/9gSM8
https://www.nytimes.com/2020/05/08/opinion/supreme-court-trump-executive-privilege.html