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| The Supreme Court Should Tell Trump He Is Not Above the Law | The Supreme Court Should Tell Trump He Is Not Above the Law |
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| Does President Trump have immunity from criminal investigation or prosecution, as his lawyer asserts? The answer is no, and now the Supreme Court has the opportunity to make that clear. | Does President Trump have immunity from criminal investigation or prosecution, as his lawyer asserts? The answer is no, and now the Supreme Court has the opportunity to make that clear. |
| Earlier this month, a three-judge panel of the United States Circuit Court of Appeals for the 2nd Circuit held unanimously that any immunity President Trump may enjoy does not prevent the Manhattan district attorney from subpoenaing his tax preparer to provide eight years of his corporate and personal tax returns. | |
| The legal issue was a narrow one, but that didn’t stop his lawyers from arguing that the president enjoys absolute immunity from criminal prosecution and even investigation while president. One went so far as to affirm in oral argument that Mr. Trump could commit, as one of the judges put it, “a crime, no matter how heinous” with impunity while president — like shooting someone on Fifth Avenue. | The legal issue was a narrow one, but that didn’t stop his lawyers from arguing that the president enjoys absolute immunity from criminal prosecution and even investigation while president. One went so far as to affirm in oral argument that Mr. Trump could commit, as one of the judges put it, “a crime, no matter how heinous” with impunity while president — like shooting someone on Fifth Avenue. |
| Now the president has appealed the tax ruling to the Supreme Court. In their petition to the court, Mr. Trump’s lawyers argued that “whether the President is absolutely immune” from state criminal proceedings “is an important and unsettled issue of federal law that the Court should resolve.” | Now the president has appealed the tax ruling to the Supreme Court. In their petition to the court, Mr. Trump’s lawyers argued that “whether the President is absolutely immune” from state criminal proceedings “is an important and unsettled issue of federal law that the Court should resolve.” |
| Narrow as the appeals court ruling was, the Supreme Court should take up the president’s invitation and rule broadly — to correct one of the most vexing and dangerous misinterpretations of the Constitution during the Trump era: that the president is, in effect, above the law. | Narrow as the appeals court ruling was, the Supreme Court should take up the president’s invitation and rule broadly — to correct one of the most vexing and dangerous misinterpretations of the Constitution during the Trump era: that the president is, in effect, above the law. |
| The constitutional basis for a claim of absolute immunity is overwhelmingly weak. No part of the Constitution explicitly supports the idea; it is silent on the issue. Instead, the president’s legal team largely appeals to the reasoning in two memos from the Justice Department’s Office of Legal Counsel — memos written during the Nixon and Clinton administrations. Both came to the same conclusion: As the Clinton Justice Department memo said, “the indictment or criminal prosecution of a sitting president would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” | The constitutional basis for a claim of absolute immunity is overwhelmingly weak. No part of the Constitution explicitly supports the idea; it is silent on the issue. Instead, the president’s legal team largely appeals to the reasoning in two memos from the Justice Department’s Office of Legal Counsel — memos written during the Nixon and Clinton administrations. Both came to the same conclusion: As the Clinton Justice Department memo said, “the indictment or criminal prosecution of a sitting president would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” |
| That’s one interpretation. But two Supreme Court cases — United States v. Nixon and Clinton v. Jones — put Mr. Trump’s claim of absolute immunity on rocky footing. | That’s one interpretation. But two Supreme Court cases — United States v. Nixon and Clinton v. Jones — put Mr. Trump’s claim of absolute immunity on rocky footing. |
| In the Nixon case, the court ruled unanimously that a president must comply with a criminal subpoena — in that case, an order to turn over the infamous Watergate tapes. In reaching their decision, the justices did acknowledge the existence of some presidential privilege but rejected Nixon’s claim of absolute privilege in the case because it “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” | In the Nixon case, the court ruled unanimously that a president must comply with a criminal subpoena — in that case, an order to turn over the infamous Watergate tapes. In reaching their decision, the justices did acknowledge the existence of some presidential privilege but rejected Nixon’s claim of absolute privilege in the case because it “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.” |
| In his Supreme Court confirmation hearing last year, Justice Brett Kavanaugh, who had been called to account for his musings about limiting or even reversing United States v. Nixon, sought to reassure senators when he called the decision one of the “greatest moments in Supreme Court history.” Even so, Justice Kavanaugh discussed the case in the narrowest of terms, as the right to subpoena “for information”— the tapes — in the context of a criminal trial. Elsewhere in the hearing, though, he did defend the broad principle associated with the Nixon case, telling lawmakers, “No one is above the law in our constitutional system.” | In his Supreme Court confirmation hearing last year, Justice Brett Kavanaugh, who had been called to account for his musings about limiting or even reversing United States v. Nixon, sought to reassure senators when he called the decision one of the “greatest moments in Supreme Court history.” Even so, Justice Kavanaugh discussed the case in the narrowest of terms, as the right to subpoena “for information”— the tapes — in the context of a criminal trial. Elsewhere in the hearing, though, he did defend the broad principle associated with the Nixon case, telling lawmakers, “No one is above the law in our constitutional system.” |
| Clinton v. Jones, decided unanimously as well, also undermines the myth of presidential immunity and undercuts the argument in the Justice Department memos. The court ruled that the president does not have immunity from civil lawsuits — in this case for sexual harassment when Bill Clinton was governor of Arkansas — that arise from private actions unrelated to his official duties as president. The court rejected the argument made by President Clinton’s lawyers that allowing a civil indictment would so badly hinder the functioning of the executive branch that the president should be immune from legal action. The judiciary and the executive branch could work together to “accommodate” the president’s “busy schedule,” the justices said. They also dismissed the argument that their decision would unleash a flood of frivolous lawsuits — an argument now being recycled by Mr. Trump’s lawyers — as mere speculation. | Clinton v. Jones, decided unanimously as well, also undermines the myth of presidential immunity and undercuts the argument in the Justice Department memos. The court ruled that the president does not have immunity from civil lawsuits — in this case for sexual harassment when Bill Clinton was governor of Arkansas — that arise from private actions unrelated to his official duties as president. The court rejected the argument made by President Clinton’s lawyers that allowing a civil indictment would so badly hinder the functioning of the executive branch that the president should be immune from legal action. The judiciary and the executive branch could work together to “accommodate” the president’s “busy schedule,” the justices said. They also dismissed the argument that their decision would unleash a flood of frivolous lawsuits — an argument now being recycled by Mr. Trump’s lawyers — as mere speculation. |
| Despite President Trump’s antipathy toward the Clintons, his legal team has drawn heavily from the Clinton Justice Department memo — especially its argument that a criminal trial would render the president too distracted to govern. Of course, the impeachment proceedings he is currently facing are doubtless distracting, but that didn’t stop the framers from including that remedy in the Constitution. | Despite President Trump’s antipathy toward the Clintons, his legal team has drawn heavily from the Clinton Justice Department memo — especially its argument that a criminal trial would render the president too distracted to govern. Of course, the impeachment proceedings he is currently facing are doubtless distracting, but that didn’t stop the framers from including that remedy in the Constitution. |
| Mr. Trump’s lawyers cite in their defense of absolute immunity the Supreme Court ruling in Nixon v. Fitzgerald, which said the president was entitled to “absolute immunity” from damages in civil suits on matters that pertain to a president’s official duties. But the tax matter before the court involves a criminal investigation, not a lawsuit, and focuses on hush-money payments made to two women just before the 2016 presidential election, when Mr. Trump was a private citizen. | Mr. Trump’s lawyers cite in their defense of absolute immunity the Supreme Court ruling in Nixon v. Fitzgerald, which said the president was entitled to “absolute immunity” from damages in civil suits on matters that pertain to a president’s official duties. But the tax matter before the court involves a criminal investigation, not a lawsuit, and focuses on hush-money payments made to two women just before the 2016 presidential election, when Mr. Trump was a private citizen. |
| In his brief second inaugural address in 1793, George Washington imagined what should happen were he to disregard his oath of office, saying that “besides incurring constitutional punishment” — presumably a reference to impeachment — he should be “subject to the upbraidings of all” who were witnesses to his swearing-in. | In his brief second inaugural address in 1793, George Washington imagined what should happen were he to disregard his oath of office, saying that “besides incurring constitutional punishment” — presumably a reference to impeachment — he should be “subject to the upbraidings of all” who were witnesses to his swearing-in. |
| To Washington, the dignity of the office depended on the president respecting constitutional limits. By calling for punishment were he to violate his oath, Washington made clear that the values of the new republic stood above the self-interest of the president. That principle applies in this case too. There is enormous danger to the country when its most powerful official believes he can get away with a crime. | To Washington, the dignity of the office depended on the president respecting constitutional limits. By calling for punishment were he to violate his oath, Washington made clear that the values of the new republic stood above the self-interest of the president. That principle applies in this case too. There is enormous danger to the country when its most powerful official believes he can get away with a crime. |
| President Trump and his successors must be told in no uncertain terms that they can be held to criminal account if they break the law. | President Trump and his successors must be told in no uncertain terms that they can be held to criminal account if they break the law. |
| Corey Brettschneider is a political-science professor at Brown and a visiting law professor at Fordham. He is the author of “The Oath and the Office: A Guide to the Constitution for Future Presidents.” | Corey Brettschneider is a political-science professor at Brown and a visiting law professor at Fordham. He is the author of “The Oath and the Office: A Guide to the Constitution for Future Presidents.” |
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