Do US laws apply to US presidents? Supreme Court to decide.
In a way, the U.S. Supreme Court is due.
In the 1974 case U.S. v. Nixon, the court decided unanimously that President Richard Nixon couldn鈥檛 block the release of the Watergate tapes to investigators. Twenty-three years later, it ruled unanimously that President Bill Clinton wasn鈥檛 immune from a civil lawsuit because of his office.
On Tuesday, another 23 years later, the high court again examined one of the toughest, but most fundamental, questions the nation鈥檚 highest court can hear: Do the laws that apply to everyone else also apply to the president?
Why We Wrote This
It鈥檚 a question that implicates the Supreme Court itself, and the balance of American democracy: Is a sitting president above the law?
They are questions that implicate the Supreme Court itself, and the balance of American democracy writ large. At a time when the court has grown increasingly deferential to the executive branch, and when this court in particular has a track record of siding with President Donald Trump, these cases carry the potential to rebalance the country鈥檚 three branches of government in dramatic ways.
Specifically, Mr. Trump is seeking to block subpoenas from the New York County district attorney and the U.S. House of Representatives for personal and Trump Organization financial records held by an accounting firm and a bank he used before entering office.
The involvement of third parties here makes the cases distinct from previous presidential immunity decisions 鈥� and perhaps harder for Mr. Trump to win than past presidents 鈥� experts say. But with some justices on the court having expressed an interest in broadening presidential power and immunity, and with some hints that the court may avoid the merits of the cases entirely, the unanimous rulings of the past may not foreshadow the same result here.
鈥淭hese cases are of tremendous concern not just for what happens with this president, but what happens with the balance of power and the separation of powers,鈥� says Michael Gerhardt, a constitutional law professor at the University of North Carolina School of Law in Chapel Hill.
鈥淚t鈥檚 not his political power that鈥檚 at stake, but it鈥檚 nonetheless about an individual whose accountability is very important in our system of governance,鈥� he adds. 鈥淒emocracy is at stake in all these cases. Democracy relies on information flowing and coming to light.鈥�
A political question?
In two of the cases, the justices may consider whether three House committees have the authority to issue subpoenas to Mazars USA and Deutsche Bank, which did work for Mr. Trump and some of his businesses.
But in late April the court signaled that it may avoid that question, asking the parties in the two cases to file briefs on whether the case is a 鈥減olitical question鈥� that would be inappropriate for the judicial branch to address. The court invoked the 鈥減olitical question doctrine鈥� as recently as last term, when it ruled that federal courts could not hear claims related to partisan gerrymandering, and at least one current justice has suggested that it could be relevant here.
During a , Justice Brett Kavanaugh 鈥� a Trump appointee and the newest addition to the court 鈥� said that Nixon may have been wrongly decided.
鈥淢aybe the tension of the time led to an erroneous decision,鈥� he said. 鈥淪hould [it] be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so.鈥�
He has since said on several occasions, including , that Nixon should not be revisited. But there could be lower court precedent for the justices to say they can鈥檛 weigh in, with the U.S. Court of Appeals for the D.C. Circuit ruling in February that it couldn鈥檛 resolve a lawsuit from the U.S. House seeking to subpoena former White House Counsel Don McGahn.
Since the subpoenas at issue here are not to Mr. Trump himself, however, and since Mazars has said it鈥檚 ready and willing to comply, a ruling that the case is a nonjusticiable political question would be a loss for the president 鈥� in the short term, at least. In the long term, such a ruling could give a president broad immunity from congressional investigations.
鈥淭here鈥檚 a real cost if the courts are not available to enforce proper subpoenas in proper investigations, and that鈥檚 what you have here,鈥� says David Cole, legal director of the American Civil Liberties Union, which has filed amicus briefs opposing Mr. Trump.
鈥淚f a president just ignores Congress what are they supposed to do?鈥� he adds. 鈥淎nd if a president thinks Congress is violating their prerogative, what are they supposed to do?鈥�
Presidential immunity
Whether it鈥檚 a political question or not, Mr. Trump is making the same broad arguments that past presidents have: that the duties and sensitivities of the office, as the country鈥檚 chief executive, top diplomat, and commander in chief, means he should have immunity from legal actions and be able to protect information within the executive branch.
In an amicus brief, the U.S. Department of Justice noted that the Supreme Court has 鈥渓ong understood鈥� that the U.S. Constitution gives the president immunity from civil and criminal proceedings.
鈥淭he President鈥檚 immunity from state judicial process must be even broader鈥� than federal judicial process, the .
State and local prosecutors could use subpoenas to harass or retaliate against a president, and as local officials they have no 鈥渋ncentives to consider the effects of their subpoenas on the Nation as a whole.鈥� The House subpoenas, meanwhile, represent a 鈥渓aw enforcement effort鈥� that House committees are not empowered to perform under the Necessary and Proper Clause of the Constitution, Mr. Trump argues.
For many legal scholars, however, the questions raised in these cases should be relatively easy to answer, and they should not come out in Mr. Trump鈥檚 favor.
With no prosecutorial powers, the House committees argue that the subpoenas are a routine exercise of their oversight and lawmaking powers that the Supreme Court has long recognized. The records being subpoenaed don鈥檛 pertain to official executive branch activities, and so should fall outside executive privilege. And while a sitting president may merit immunity from prosecution, that doesn鈥檛 mean he should be immune from investigation 鈥� particularly when it concerns his private, unofficial conduct.
鈥淚f states can鈥檛 [subpoena] people who happen to become federal officials, that cuts off a significant avenue for holding people accountable for what they鈥檝e done,鈥� says Professor Gerhardt, a constitutional conflicts expert who testified in both Mr. Clinton鈥檚 and Mr. Trump鈥檚 impeachment hearings.
Striking a balance
As straightforward as these cases may appear, however, any case involving a sitting president is complicated and polarizing. Most Supreme Court cases involving Mr. Trump and his administration have been decided in his favor, and in partisan 5-to-4 rulings. In that context Chief Justice John Roberts, the ideological center of the court, could hold the pivotal vote.
When he cast the majority opinion that upheld the Trump administration鈥檚 travel ban, he added a formal repudiation of the court鈥檚 infamous 1944 ruling in Korematsu v. United States, which permitted the internment of U.S. citizens of Japanese descent during World War II. Last term, he joined his four liberal colleagues and wrote the majority opinion that blocked the administration from adding a citizenship question to the 2020 Census, though his opinion acknowledged, with the support of his four conservative colleagues, that the administration to add such a question.
鈥淏oth purely jurisprudential factors and broadly reputational factors will be on his mind,鈥� says Ilya Somin, a professor at the George Mason University Antonin Scalia School of Law.
Few cases put the reputation of the court as front and center as cases of presidential power and immunity. Supreme Court cases almost always involve tough, complex questions of statutory and constitutional interpretation. These cases in particular strike at the purpose of the court itself and the balance of power across the three branches of government.
The high court usually seeks to rule as narrowly as possible, but here even a narrow ruling could be seismic. By removing the judiciary from federal subpoena fights, or broadening presidential immunity in some way, the three branches of government would still be separate, but they might also be less equal.
鈥淒emocracy is tremendously undercut when one or more branches is able to hide or keep damaging information from coming to light,鈥� says Professor Gerhardt.
The three branches, he adds, are designed 鈥渢o check each other, not for one branch to check out, or one branch to dominate the others. The point of the separation of powers is accountability.鈥�
