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.
The authorities usually cited for the proposition that a sitting president cannot be indicted are two Justice Department memorandums. Rather than offering a legal analysis based on Article II, the memos are largely pragmatic, advising that it would be unwise to distract a president with legal processes when he needs to focus on the national interest. As such, these memorandums are merely advice to Justice Department prosecutors. They are not binding in any way on state prosecutors.
In a March 27 brief to the court, the president’s lawyers provided a new twist — that it is even more important not to distract the president given the Covid-19 crisis, as “the nation requires the president’s undivided attention.” But as Justice Antonin Scalia observed in the oral arguments in Clinton v. Jones, when a president is so busy “that he’ll never be seen playing golf for the rest of his administration,” then, and only then, should the court worry whether subpoenas would interfere with his ability to do his job.
In a 2009 Minnesota Law Review article, Justice Brett Kavanaugh proposed that Congress enact a statute that would immunize the president from criminal investigation. By suggesting the need for such a law, Justice Kavanaugh implicitly acknowledged that the Constitution alone does not establish presidential immunity. This is the same Brett Kavanaugh, by the way, who sent a memo to his boss at the time, the Whitewater independent counsel, Ken Starr, explaining why he was “strongly opposed” to giving President Clinton any “break in the questioning” in preparing for his deposition on his relationship with Ms. Lewinsky, and who drafted a series of graphic questions for Mr. Starr to ask the president.