President Donald Trump “is not to be treated as an ordinary citizen” and should receive temporary immunity from criminal subpoenas while in office so he isn’t distracted from his focus on his constitutional duties ― including his response to the coronavirus pandemic, his attorney told Supreme Court justices on Tuesday.
Jay Sekulow, one of the attorneys who represented Trump during his Senate impeachment trial earlier this year, told the Supreme Court during telephonic oral arguments that state prosecutors should be prevented from targeting the president’s documents in criminal proceedings while he’s in office. It was the second argument of the day that focused on Trump’s records ― the court earlier heard a dispute over House subpoenas that sought to obtain Trump’s financial records.
Sekulow argued that the presidency “is being harassed and undermined” by subpoenas issued both by the House and by Manhattan District Attorney Cy Vance Jr., who sought Trump’s tax returns. Vance has been investigating whether Trump Organization officials broke the law in the course of paying off two women who, during the 2016 presidential campaign, claimed prior affairs with then-candidate Trump.
Much of the debate centered on whether Trump ― a vociferous cable news consumer and a near-constant presence on Twitter ― would be distracted from his constitutional duties as president. Sekulow suggested it would be inappropriate for him to have to call up the president and take up hours of his time while Trump is busy “handling a pandemic.”
Chief Justice John Roberts questioned Sekulow’s theory that subpoenas should be blocked because they would distract the president, asking why the distraction theory would go further than allowing Trump to resist a subpoena and instead allow an investigation to be shut down in its entirety.
“You focus on the distraction to the president, but I don’t know why in Clinton v. Jones we were not persuaded that the distraction in that case meant that discovery could not proceed,” Roberts said.
“There are different things that distract different people,” said Roberts. “But I would have thought the discovery in a case like Clinton v. Jones ― even though it was civil ― would be distracting, as you argue the grand jury proceedings are here.”
Later, Roberts seemed to suggest there should be a higher standard for subpoenas coming from district attorneys, both because of the number of prosecutors around the country and the lack of an ongoing relationship between prosecutors and the president (as there is between the White House and Congress).
In the Jones case, the Supreme Court rejected the argument that President Bill Clinton would be distracted from his constitutional duties by his need to respond to a sexual harassment lawsuit filed by Paula Jones. Clinton ultimately lied under oath while being deposed, and was subsequently impeached by the House of Representatives but acquitted by the Senate.
Justice Elena Kagan conceded that the president can’t be treated just like an ordinary citizen, but said that the notion that “the president isn’t above the law” is a “fundamental precept of our constitutional order.”
Noel Francisco, the Trump-nominated U.S. Solicitor General, made a more narrow argument than Sekulow, arguing that local prosecutors should, at minimum, have to show to a federal court that they really need the president’s personal records. Vance, Francisco said, hadn’t tried to meet a “special needs standard” that illustrated a specific need for the information requested.
Francisco said that Sekulow “makes a very strong argument on the immunity issue” but said there’s no need for the Supreme Court to address “broader and more difficult” immunity questions when Vance, in the government’s view, hadn’t met the special needs standard.
Carey Dunne, an attorney for the New York County District Attorney’s office, told the court that the “apocalyptic” predictions about what would happen if presidents were subjected to legal matters hadn’t come true.
Dunne said that the subpoena sought information from a third party about the private conduct of a variety of individuals and businesses, including the president. The Manhattan prosecutor would have been “remiss” not to follow up on public reports about potentially illegal business transactions that took place in his jurisdiction.
“In response, the president asked the court to overturn 200 years of precedent by declaring he has a blanket immunity while in office for any legal inquiry, even for his prior private acts, even though that could result in a permanent immunity for him and the other parties if the statutes of limitation expired,” Dunne said.
There’s just no basis to think that an “army of local prosecutors” would have jurisdiction over the president’s actions and go after the president, Dunne said. There hasn’t been a “reckless mania” by local prosecutors to go after the president, Dunne said.
“The claim of possible mental distraction is completely speculative, really. It’s based on the notion that the president might be worried and distracted about where an investigation might lead someday,” Dunne said. “I think it’s wrong to think that even a categorical rule here would provide comfort to a distractible president like that.”