The presidency of Donald Trump goes on trial this week, and this time it’s not before Congress but before the US Supreme Court.
On Tuesday, the court is scheduled to take up three challenges to the president’s sweeping claims of immunity from investigation. At stake is the very notion of whether the president of this Republic is above the law — whether he can simply ignore subpoenas from Congress and a state grand jury with a blanket claim of executive privilege.
These aren’t arcane legal arguments, but rather go to the heart of whether the president can be held accountable by Congress or the courts and whether in fact this nation still has three separate and “coequal” branches of government.
Two of the cases involve Trump’s dispute with Congress — one over a subpoena from the House Committee on Oversight and Reform seeking records from Trump’s longtime accounting firm, Mazars USA, the other involving records demanded by the House Financial Services Committee and the Intelligence Committee for records from Deutsche Bank, Trump’s biggest lender. The latter involves the congressional investigation into possible foreign interference in the 2016 election.
Trump’s lawyers insist the subpoenas are “unprecedented,” while lawyers for the House counter that the subpoenas have a “valid legislative purpose” and that its committees have historically had the power to investigate “the wide range of issues on which Congress legislates.”
The third case involves a subpoena of Trump financial records, including eight years of tax returns, by Manhattan District Attorney Cyrus Vance Jr. in connection with a grand jury probe of alleged hush-money payments to porn star Stormy Daniels and former Playboy model Karen McDougal during the 2016 presidential campaign.
Trump’s lawyers have argued not merely that the president is immune from criminal prosecution — itself a debatable proposition, based largely on Justice Department protocol — but also that “politically motivated subpoenas like this one are a perfect illustration of why a sitting president should be categorically immune from state criminal process.”
Under that doctrine, Trump, as he’s asserted, presumably could indeed gun down someone on Fifth Avenue and not be held accountable.
In fact, in all three cases, appeals courts have already upheld the subpoenas.
A Second Circuit Court of Appeals ruling in the case brought by Vance found that “presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President.”
In fact, the opinion authored by Chief Judge Robert Katzmann noted that since six previous presidents had already disclosed their tax returns voluntarily, “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.”
There is, of course, a rational basis for some claims of executive privilege. A president should have the ability to consult with advisers, to receive memos and reports for his eyes only. But that privilege has never been absolute — and that’s the kind of privilege Trump’s lawyers are proposing here, one that ultimately would force the judicial branch to abdicate its role as arbiter of last resort.
Back in 1974, President Nixon made a broad claim of executive privilege, not unlike Trump’s, only to be rebuffed by a unanimous Supreme Court decision ordering the release of tape recordings of White House conversations subpoenaed by the Watergate special prosecutor. Chief Justice Warren Burger wrote at the time it was “the kind of controversy courts traditionally resolve.
“The generalized assertion of privilege," Burger wrote, "must yield to the demonstrated, specific need for evidence in a pending criminal trial.”
President Clinton invoked executive privilege to keep two close aides from testifying before independent counsel Ken Starr in the Monica Lewinsky scandal. He lost in US District Court on the same grounds: that the collection of evidence trumped any need to keep conversations confidential.
Many presidents have tried to push the envelope of executive privilege, but none to the extent that Trump has — often as no more than a delaying tactic now raised to an art form.
That pretty much also describes the administration’s latest effort to prohibit the House Judiciary Committee from seeing previously undisclosed portions of the grand jury proceedings in the investigation by special counsel Robert Mueller. The US Court of Appeals has already ordered the Justice Department to turn them over. Now that decision, too, will be taken up by the Supreme Court, later this month.
“Trump’s lawyers have repeatedly argued that the president is ‘totally untouchable,’” said Ben Berwick, counsel for Protect Democracy, a nonprofit founded in 2017 by a number of former government lawyers. “The arguments they are making are totally unprecedented and certainly not what the Founders envisioned.”
The principles at stake here go far beyond payments to a porn star and the details of Trump’s tax returns. They go to whether this truly is a nation of laws and whether the other two branches of government can — and will — assert their authority over a president committed to aggregating power and to flouting the Constitution.
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