While he holds the office of the president, Donald Trump, his family, his businesses and his business associates enjoy total legal immunity from investigation, subpoena, indictment or prosecution for anything done during or before he became president, including if he shot someone dead in broad daylight in Manhattan — at least that’s what his lawyers have argued in federal court over the past eight months.
These arguments, if successful, would advance a decadeslong project to reorder the constitutional balance of powers and essentially exempt the president from oversight.
The cases involve efforts by congressional committees and the Manhattan district attorney to obtain Trump’s financial records from his accounting firm and lenders, his tax returns from the IRS, and testimony from former White House counsel Don McGahn.
The Supreme Court announced on Friday that it will review three lower court decisions rejecting Trump’s challenges to subpoenas by the House Oversight Committee and Manhattan District Attorney Cyrus Vance for his financial records held by Mazars USA LLP, his accounting firm, and his lenders, Deutsche Bank and Capital One.
“Potentially at stake is, you know, the republic,” Neil Kinkopf, Georgia State University College of Law professor, said. “That’s obviously a slight overstatement, but only slight.”
Trump argued that Congress has no right to investigate him for any wrongdoing outside of a formal impeachment inquiry, even though he has taken the unprecedented step of refusing to cooperate with the current impeachment. Department of Justice lawyer James Burnham argued “that the Constitution does not allow … the House and the Executive Branch to sue each other in court.” And he argued that the president can prevent any current or former White House officials from appearing before Congress to testify.
“If the court were to indulge the president’s broadest claim of immunity, then I think that would be the end of the idea that the president is subject to the rule of law,” Kinkopf said.
Reordering The Constitution
The president’s appeals to the Supreme Court come in the wake of unfavorable rulings from both district and appeals courts in Washington, D.C., and Manhattan.
Judges have already ruled that the president does not have a blanket immunity from investigation, his aides must appear before congressional committees when subpoenaed, courts can review legal disputes between the legislative and executive branches and that prosecutors can investigate potential wrongdoing by the president that occurred before he came into office.
Their rulings have been peppered with cutting lines noting, and rejecting, the sweeping claims made by the president.
The president’s argument that Congress cannot compel testimony by White House aides by subpoena is “baseless,” according to U.S. District Judge Ketanji Brown Jackson.
“The United States of America has a government of laws and not of men,” Jackson, who sits in the District of Columbia, wrote.
The assertion that the president or any family or business associated with him is immune from any investigation of wrongdoing, current or prior to his taking office, is one “that the Founders rejected at the inception of the Republic,” Judge Victor Marrero of the U.S. District Court for the Southern District of New York wrote.
“The Court rejects the President’s theory because, as articulated, such sweeping doctrine finds no support in the Constitution’s text or history, or in germane guidance charted by rulings of the United States Supreme Court,” Marrero added.
A few of these cases have reached more muted decisions. The appeals court ruling for Trump’s challenge to Congress’ subpoena for his records held by Deutsche Bank and Capital One upheld the subpoena, but also said that some documents may need to be withheld after they are identified.
Trump also intervened to preemptively block the House Ways and Means Committee from using a recently passed New York State law to obtain Trump’s tax returns. The district court opinion in this case simply said that the president and the court must be informed prior to any attempt to invoke the New York law and that could trigger another legal challenge.
Just one judge, Trump appointee U.S. Circuit Judge Neomi Rao, sided with Trump’s most sweeping assertions in a dissent to an otherwise unfavorable appeals court ruling in the case of the Committee on Oversight and Reform’s subpoena for Trump’s financial records from his accounting firm. Rao, who sits on the of the United States Court of Appeals for the D.C. Circuit, argued that Congress cannot investigate the president for any wrongdoing that could potentially be illegal outside of a formal impeachment inquiry.
The majority ruling, however, shot back at Rao’s dissent to note that if her opinion were adopted it would, “reorder the very structure of the Constitution,” by overturning more than a century of precedent supporting congressional investigation stretching from the Teapot Dome Scandal while also forcing the judiciary to determine which investigations could trigger impeachment. The Constitution vests sole power for impeachment in Congress.
The Unitary Executive
Many of the leading lights of the conservative legal movement ascendant during Trump’s presidency began their careers in the 1970s, a difficult moment for movement conservatives who believed in the power of the president and the executive branch.
The country’s first presidential resignation was forced by Congress. The Vietnam War ended when Congress refused to fund it anymore. The intelligence agencies faced withering congressional investigation for widespread abuses including assassination, domestic infiltration and involvement in foreign elections.
“It was a terrible time, not for the Republican Party, but for the presidency,” then-Justice Antonin Scalia said in 2013. “It was such a wounded and enfeebled presidency, and Congress was just eating us alive.”
Scalia served at the time in the Department of Justice Office of Legal Counsel. Attorney General William Barr began his career, then as a CIA analyst, during this period, too. Barr lamented the “steady grinding down of the executive branch’s authority that accelerated after Watergate” in his November speech before the Federalist Society’s 2019 National Convention.
What they experienced would later inform their formation and endorsement of the unitary executive theory, which maximizes executive branch power at the expense of Congress. The advancement of this theory can be seen as one of the main animating purposes of the Trump administration. And Barr is its chief proponent.
“It is critical to our nation’s future that we restore and preserve in full vigor our founding principles,” Barr said in his Federalist Society speech. “Not the least of these is the framers’ vision of a strong, independent executive, chosen by the country as a whole.”
In his first stint as attorney general under President George H.W. Bush, Barr championed executive power. He issued a memorandum in 1989 detailing everything he considered to be unconstitutional encroachments into executive branch duties by Congress.
It is no wonder then that lawyers in Barr’s Justice Department have made such maximal arguments to protect the president from investigation. The arguments they make in these legal cases “fit in the whole unitary executive theory project rather neatly,” Kinkopf said.
Trump appointed justices Neil Gorsuch and Brett Kavanaugh to the high court in 2017 and 2018. Now, they may decide whether or not to protect him from investigations.
“I do think that any of these cases will present a real test for Justice Gorsuch and Justice Kavanaugh,” Brianne Gorod, chief counsel for the Constitutional Accountability Center, said. “They’re going to face the question of whether to follow the law or to cast a vote in favor of the president who put them on the bench.”
Kavanaugh’s views on executive power alarmed some observers ahead of his confirmation, where he faced questions about his comments that the Supreme Court’s unanimous U.S. v. Nixon decision was wrongly decided. That decision mandated President Richard Nixon obey a subpoena for the secret White House tapes issued by the special prosecutor. The decision also formally acknowledged that the president has an executive privilege to maintain the privacy of some of his official business.
That case, Kavanaugh said in 1999, “took away the power of the president to control information in the executive branch by holding that the courts had power and jurisdiction to order the president to disclose information in response to a subpoena sought by a subordinate executive branch official. That was a huge step with implications to this day that most people do not appreciate sufficiently ... Maybe the tension of the time led to an erroneous decision.”
During his confirmation he reversed himself by calling the decision “one of the greatest moments in American judicial history.”
Kavanaugh has also argued that the president should be immune from criminal or civil investigation while in office.
Kavanaugh may soon get to reveal his real opinion. The question of whether or not McGahn must obey a congressional subpoena cuts directly at how expansive the president’s executive privilege can be. Other cases offer the court the possibility of reining in Congress’ ability to investigate the executive branch. And the Vance case involves the potential criminal investigation of the president.
There is no assurance that the conservatives on the court will side with Trump ― no matter how much he calls them “my judges.” That is especially true given the extensive precedent justifying Congress’ investigative authority.
“It’d be difficult for the court to justify giving the president a win here,” Gorod said.
The court’s conservative majority could very well find a narrower path through these cases that could expand executive branch power or define the president’s legal immunity (if he has any) in an incremental manner.
Trump may not win his argument that he can murder someone on Fifth Avenue and face no consequences. But he may wind up a useful instrument to advance the long-standing conservative desire to win more power for the presidency.