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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 rejected the president’s arguments, but the Supreme Court has agreed to hear his appeals. (The ACLU, of which I am the national legal director, has filed friend-of-the-court briefs supporting enforcement of the subpoenas.) The cases will be argued on May 12, and the Court’s decisions are likely to be among the last it hands down this summer, in the midst of the 2020 presidential campaign.* The stakes could not be more important. The grand jury case asks whether the president has the same obligations with respect to records of his personal business as everyone else—in essence, whether he is subject to or above the law. And the congressional cases go to the heart of our system of checks and balances, as they ask whether Congress can effectively exercise oversight over potential presidential wrongdoing.

The Supreme Court has only twice before addressed claims even remotely like Trump’s, and both times the president lost resoundingly. In United States v. Nixon (1974), the Court ruled that President Richard Nixon had to comply with a subpoena for tape recordings of confidential White House communications because they were relevant to an ongoing criminal prosecution. It did so even though the tapes revealed the president’s official deliberations, and therefore would generally be protected from discovery by executive privilege. The Court held that the specific interest in getting to the truth in a criminal trial outweighed the president’s general claim of executive privilege.

In Clinton v. Jones (1997), the Court rejected President Bill Clinton’s effort to block temporarily a civil lawsuit filed against him by Paula Jones for sexual harassment he allegedly committed while he was governor of Arkansas. Clinton pointed to the absolute immunity presidents have from lawsuits for damages resulting from their official acts, and argued that a more limited temporal immunity ought to extend to suits for their unofficial conduct. The Court rejected that argument, ruling that immunity is justified only for official actions. It also rejected Clinton’s argument that immunity was warranted by the burden that responding to litigation would impose on the president’s official duties. The Court noted that in the two-hundred-year history of the nation, only three presidents had been sued for damages for conduct before they took office, so Clinton’s concerns were historically unfounded. Clinton ultimately had to submit to a deposition in the case, in the course of which he lied about his relations with Monica Lewinsky, for which he was impeached, held in civil contempt, fined, and had his law license suspended. But like anyone else, he had to respond.

Significantly, the decisions in both Nixon’s and Clinton’s cases were unanimous. Unanimity sends a particularly important message in such high-stakes controversies—it shows that the Court has risen above partisan loyalties to decide the dispute based on law. In both cases, moreover, the unanimity was likely aided by the sharp tension between the presidents’ claims to immunity and the promise of “equal justice under law”—words etched in stone above the Supreme Court’s entrance. Whether the Roberts Court can reach similar consensus will be a particularly important test of its newest members, who owe their jobs to the man now seeking their votes.

In Trump v. Vance, the president claims immunity from any state criminal process. But if Nixon and Clinton were required to respond themselves, why should Trump be able to block a subpoena directed to someone else? If anything, Trump’s claims are weaker than those the Supreme Court unanimously rejected in Nixon’s and Clinton’s cases. Unlike in Nixon’s case, the subpoena seeks nothing related to his official duties as president. And unlike in Clinton’s case, Trump is not himself a defendant. Moreover, denying relevant evidence to a criminal investigation directly interferes with New York’s ability to enforce its criminal laws against multiple individuals beyond Trump whom the grand jury is investigating.

Trump points to Justice Department memos maintaining that a sitting president cannot be prosecuted. The memos argue that prosecuting a sitting president would impermissibly give a jury of twelve randomly selected citizens the power to effectively remove an elected president from office. The Constitution provides a different mechanism for removing a president: impeachment, a decision given not to a jury but to the representatives of the people. That argument makes sense, as far as it goes.

But even if a president cannot be prosecuted while in office, it does not follow that he cannot be investigated, much less that he can block requests for his documents that may be relevant to the investigations of the criminal conduct of others. Those who maintain that a sitting president cannot be indicted always note that he can be prosecuted after he leaves office. Indeed, one of the Justice Department memos on which Trump relies expressly acknowledges that although a grand jury could not indict a sitting president, it “could continue to gather evidence throughout the period of immunity.” And even if the president cannot be prosecuted while in office, any co-conspirators could be.

Noting that Nixon’s and Clinton’s cases arose in federal courts, Trump also argues that allowing state prosecutors to demand documents relating to the private affairs of presidents violates the Constitution’s Supremacy Clause, which holds that state laws cannot interfere with federal laws. But nothing in the Constitution says that federal officials cannot be held accountable for state crimes they commit as private citizens. Trump invokes the specter of state prosecutors across the country issuing subpoenas in connection with bad-faith grand jury investigations. Clinton made similar claims about a deluge of civil lawsuits, but the Supreme Court discounted them as conjectural in light of the absence of any evidence of such abuse. Trump says there are more than 2,300 prosecutors nationwide, but there are 325 million people in the US who could bring a civil lawsuit against a president, and that did not stop the Court from allowing such a suit against Clinton. Prosecutors can empanel grand juries only to investigate individuals whom they believe have committed crimes within their jurisdiction, and they take an oath to uphold the Constitution, so there is far less reason to worry about frivolous criminal investigations than vexatious civil lawsuits.

Thus far, Trump’s private documents have been subpoenaed by only one state prosecutor, in New York City, where Trump and his businesses were located. And among the crimes the grand jury is investigating are the payoffs to Stormy Daniels, for which Trump’s personal attorney, Michael Cohen, has already pleaded guilty, so this is no “witch hunt.” Finally, to the extent that a grand jury overreaches, the president can always seek federal court protection. But to merit it, he must show a particular burden, and cannot merely rest on general speculation about unspecified abuse in an unspecified future.

The cases involving congressional subpoenas are apt to worry Trump far more than the grand jury case, for a simple reason: grand jury proceedings are secret, while congressional investigations generally are not. With narrow exceptions, the state cannot disclose evidence obtained in connection with a grand jury investigation. But the evidence a congressional committee gathers is routinely published in official committee reports. So, if the grand jury obtains Trump’s tax records, the public may still never see them (unless they are introduced in a subsequent criminal trial). If the congressional committees obtain the records, however, he has no such assurance.

The president argues that the congressional subpoenas are unenforceable for two principal reasons: (1) the committees are pursuing law enforcement, which is not a legitimate legislative function; and (2) the subpoenas do not serve a valid legislative purpose, because any legislation Congress might enact that would impose disclosure or ethics rules on the president would be unconstitutional. Neither argument is persuasive.

Congress is not engaged in law enforcement but in legislative investigation and oversight. The Supreme Court has long held that “the power of the Congress to conduct investigations is inherent in the legislative process.”3 That power includes the right to inquire into past wrongdoing, as such inquiries will inform Congress’s judgment about whether the laws should be reinforced or changed. Congress cannot enforce the laws through prosecution; that’s the executive’s task. If Congress were using the legislative process to obtain documents to hand over to a prosecutor, Trump’s objection might stand, but there is no evidence that it is doing this. Rather, the committees have explained that they seek Trump’s financial records to guide decisions about whether new laws governing financial disclosure, conflicts of interest, and intelligence concerns regarding foreign influence are needed. This is standard oversight, the ordinary stuff of legislative checks and balances. Trump argues that because the committees are examining past wrongdoing, they must be engaged in “law enforcement.” But that is a non sequitur; evidence of past wrongdoing often informs future reform. After Congress investigated the Teapot Dome scandal in the 1920s, for example, it enacted the Federal Corrupt Practices Act. And after Congress investigated Watergate, it enacted a slew of good-governance reforms, including the Ethics in Government Act.

In a variation on the president’s contention, Judge Neomi Rao, a recent Trump appointee to the US Court of Appeals for the D.C. Circuit, maintained in dissent in Trump v. Mazars that the only way Congress can investigate presidential wrongdoing is through a formal impeachment inquiry, and since the subpoenas were not issued as part of the impeachment process, they are invalid. Trump’s lawyers are barely defending this novel theory before the Supreme Court, devoting only a single paragraph in their sixty-five-page brief to it—and for good reason.

The Framers gave Congress two distinct ways to respond to wrongdoing by the president: it can enact laws designed to forestall similar conduct in the future, or it can seek to remove him from office. The second power does not limit the first. As long as Congress is considering remedial legislation, there is no reason it should be barred from conducting an investigation into possible executive wrongdoing. Many presidents have been subjected to such congressional inquiries; only three have been impeached.

Nor is there any basis for Trump’s contention that the investigations are impermissible because Congress could not possibly enact any valid legislation to address a president’s conflicts of interest, financial disclosures, or compromising ties to foreign officials or institutions. Courts block a legislative inquiry only when Congress is “plainly incompetent” to legislate on the subject, or when its inquiry is “irrelevant to any lawful purpose.”4 To rule for the president on this ground, the Court would have to imagine every possible legislative response, and conclude that they are all unconstitutional—without having any specific law before it to consider. What’s more, the argument is plainly without merit. Presidents have been subject to financial disclosure laws since Congress passed the Ethics in Government Act in 1978, and Congress obviously has a legitimate interest in knowing whether the president is compromised by foreign ties.

There are good reasons to be vigilant about the rights of those called to testify or produce documents by grand juries and congressional committees. The McCarthy era demonstrated that both institutions can be abused to target dissidents and chill constitutional freedoms. But Trump makes no such claims. His objections to both the grand jury and congressional investigations ask the Supreme Court to exempt the president, even in his personal capacity, from the laws that apply to the rest of us. But the notion that neither a grand jury nor a congressional committee can even request records that may reveal private illegal conduct by the president, simply because he is the president, undermines two of the most fundamental principles of our constitutional system: that checks and balances are absolutely essential, and that no one is above the law.

March 11, 2020

  1. *

    Arguments that had been originally scheduled for March 31 were postponed to May 12 due to the coronavirus outbreak. 

  2. 1

    Other cases in which Trump is attempting to block congressional requests for information from the Mueller investigation and for testimony from former White House counsel Don McGahn II are making their way through the courts but have not yet reached the Supreme Court. On February 28, the US Court of Appeals for the D.C. Circuit ruled, in a divided opinion, that it lacked jurisdiction to require McGahn to comply with the subpoena. In March, the full court granted rehearing “en banc” in McGahn’s case, thereby vacating the panel decision. The full court heard argument on April 28, and a decision is forthcoming. For a complete listing of these cases, see Samantha Fry, “Trump Litigation Round Up,” Lawfare, December 11, 2019. 

  3. 2

    United States v. Bryan, 339 U.S. 323, 331 (1950) (quoting 7 J. WIGMORE, EVIDENCE § 2192 [McNaughton rev. 1961]). 

  4. 3

    Watkins v. United States, 354 US 178, 187 (1957). 

  5. 4

    McPhaul v. United States, 364 US 372, 381 (1960).