Law professors Claire O. Finkelstein and Richard W. Painter describe the issues in 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.
(Thanks to Roving Reporter Sherry for this NY Times tip.)
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.
Trump aspires to, and already operates as, a dictator with unchallengeable authoritarian powers. A SCOTUS ruling for Trump would pretty much transform our democracy into monarchy.
The court should rely on it own precedents:
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.
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.