Trump Is Not Exempt

Donald Trump
Donald Trump; drawing by James Ferguson

During the 2016 presidential campaign, Donald Trump boasted, “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters.” He now argues that as president he couldn’t even be investigated for doing so. In three cases that have reached the Supreme Court, Trump is seeking to block subpoenas issued in connection with investigations of his conduct as a private citizen. In Trump v. Vance, the district attorney of New York City, Cyrus Vance Jr., subpoenaed Trump’s personal financial records, including his tax returns, for a grand jury investigation into whether several people committed crimes by paying hush money to an adult film star, Stormy Daniels, to stop her from talking about her sexual relations with Trump in 2006, while his wife, Melania, was recovering from giving birth to their son, Barron. In two other cases, Trump v. Mazars and Trump v. Deutsche Bank, congressional committees have sought similar records in connection with oversight hearings on whether Trump has conflicts of interest with foreign institutions and officials, has misstated his assets to avoid tax liabilities, or has violated financial disclosure obligations.

These subpoenas are directed not to Trump himself but to his accounting firm, Mazars USA, and two banks, Deutsche Bank and Capital One. (In all three cases, Trump sued the subpoena recipients to bar them from complying, as well as the prosecutor and congressional committees that issued the subpoenas.) The subpoenas do not require Trump himself to produce the records requested and do not seek any records of his acts as president. Trump nonetheless argues that because he is president, he should be able to block the accounting firm and banks from responding, to avoid being “distract[ed]” from the responsibilities of his office.1

Under our legal system, the state generally “has a right to every man’s evidence,”2 which means that in the absence of a recognized privilege, such as those protecting attorney–client communications or shielding defendants from compelled self-incrimination, we are all obliged to respond to a subpoena for documents or testimony. Grand juries have authority to investigate any conduct within their jurisdiction in order to determine whether there is “probable cause” that a crime may have been committed. They may demand any documents that might be relevant to such inquiries. And the courts have long recognized that Congress has broad authority to investigate any matter on which it could legislate and to compel both the testimony of witnesses and the handing over of documents—whether from Facebook, a state police department, or the executive branch.

Trump claims, however, that this authority ought not to extend to investigations of the president. He contends that he should be immune from all state criminal investigations as long as he remains in office. And he objects that the congressional committees are impermissibly pursuing law enforcement objectives, not legitimate inquiries to inform legislation.

The lower courts have uniformly…

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