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Does the rule of law apply to Trump? The U.S. Supreme Court must decide

Erwin Chemerinsky, Berkeley Law dean | May 19, 2020
Republican President Donald Trump.

Republican President Donald Trump. (iStock photo.)

Is the president of the United States above the law? That is the issue in the cases argued in the Supreme Court on Tuesday morning (May 12).

President Trump’s lawyers, along with the U.S. Justice Department, argued to the justices that information about the president cannot be subpoenaed from those who do business with him, such as from his accountants or his banks. Their claim is not simply that the president is immune from subpoenas, but that he can block all who do business with him from providing information, whether it is a criminal investigation of acts that occurred before he took office or a congressional investigation.

This expansive immunity for a president would be unprecedented in American history. That is why every lower court — three federal district courts and three federal courts of appeals — ruled against Trump.

Based on Supreme Court precedents, I think these should be easy cases for the high court — as they were for every lower court that rejected Trump’s claim. These are subpoenas directed at private entities for actions unrelated to Trump’s conduct in office and for the important purposes of congressional and grand jury investigations. In 1974, in United States vs. Nixon, the Supreme Court unanimously rejected the claim that the president is immune from subpoenas.

Still, it’s always difficult to predict from the oral argument whether legal precedents will carry the day, especially with an ideologically divided court and a politically polarizing president.

The first matter heard Tuesday were two cases that were consolidated for oral argument: Trump vs. Mazars USA and Trump vs. Deutsche Bank. The former involves a subpoena to Trump’s accountants by the House Oversight and Reform Committee, which is investigating his financial involvement and that of his businesses with Russian companies, and the accuracy of financial statements he made to obtain loans and reduce taxes. The latter case involves subpoenas from the House Financial Services and Intelligence committees that were directed at two financial institutions that did business with Trump, Deutsche Bank and Capital One.

The House argues it seeks the records from Mazars USA, an accounting firm for Trump and his businesses, and from Deutsche Bank and Capital One for the legitimate purpose of investigating whether Congress should amend federal conflict-of-interest and financial disclosure laws, as well as laws regulating banks.

During the argument, the justices appeared neither to want to give the president total immunity in such cases nor to give Congress carte blanche in issuing subpoenas to parties doing business with the president.

Justice Brett M. Kavanaugh, for one, seemed to favor the president’s position and want Congress to show a “heightened need” for the information. But the liberal justices seemed to side with Congress, noting, as Justice Sonia Sotomayor did, that the information the House committees sought is from private entities about actions having nothing to do with Trump’s performance as president.

The other case argued was Trump vs. Vance, which involves a state grand jury subpoena for Trump’s business and personal records in connection with an investigation of hush money that was paid by the Trump Organization during the 2016 campaign to Stormy Daniels to keep her from revealing a sexual relationship with him. The inquiry is into whether these payments violated New York campaign finance law. Trump sued in federal court to keep Mazars USA from turning over the financial records.

Trump’s lawyer, Jay Sekulow, argued that the president is completely immune from criminal investigation, including subpoenas for documents from third parties for actions taken before assuming office. But that absolute position seemed to attract little support from the justices.

Solicitor General Noel Francisco, also arguing in support of Trump’s position, said that there has to be a showing of “special need” to subpoena information concerning the president. But as several of the more liberal justices pointed out, there is no reason why the usual standard — that there be a good faith basis for the grand jury investigation and that that subpoena be reasonable in its scope and burden — is inadequate. They, and Justice Samuel A. Alito Jr., identified the difficulty with applying a “special needs” analysis to grand jury proceedings.

Hovering over these cases is the possibility that legal proceedings could be used to harass any president, now or in the future. But as was pointed out during the arguments, in Clinton vs. Jones in 1997, the Supreme Court held that President Clinton could be civilly sued for actions that took place before he was in office. The court unanimously rejected the argument that concern for possible harassment of the president justified absolute presidential immunity.

The current court, though, is more ideologically polarized than it was, even at the height of the hyper-partisan Clinton era. Can the Supreme Court overcome this and perhaps even reach a unanimous decision, as it did in United States vs. Nixon and Clinton vs. Jones?

The core of the rule of law is that no one, not even the president, is above the law. These cases will show whether the Supreme Court will uphold the rule of law when it comes to the Trump presidency.

[This commentary was published originally in the Los Angeles Times on May 12, 2020.]


Comments to “Does the rule of law apply to Trump? The U.S. Supreme Court must decide

  1. The worst case reality check for this post is that the George Floyd murder is yet another proof that the 400 year holocaust against black people in America is not over, certified most recently by the Trump tweet flagged by Twitter for “glorifying violence”: “When the looting starts, the shooting starts.”

    And the root cause is the failure of American leadership due to overwhelming corruption of American legal, political, economic and academic institutions that have all failed to protect American Democracy and the human race from the out of control consequences we are experiencing today from global warming, pandemics, social inequalities and economic instabilities.

    • This is not the first time the MPD has hired and trained a rogue who killed a civilian. Justine Damond, a white woman, was killed by a black Somali-origin cop three years ago in an incident that exposed a lack of adequate training and supervision for a policeman who was regarded as a showcase of integration of recent immigrants into the community. Notably, no riots or even mass protests resulted from that case of inter-racial police brutality.

      The City of Minneapolis has been governed exclusively by liberals for decades. The current mayor, Jacob Frey, who was quick to denounce his own police department, is a left-wing Democrat. The Minneapolis City Council consists of Democrats and Green Party members who think the Democrats are not radical enough. Under left-wing leadership, Minneapolis has been governed abysmally for a long time. Its police department is but one part of an incompetently governed city.

  2. We need a Special Counsel to investigate former President Barack Obama and former Vice President Joe Biden for corruption.

    See: “Hunter Biden’s China dealings — approved by Obama — are drawing new scrutiny amid Joe Biden’s run”
    “Scrutiny of business deals by former Vice President Joseph R. Biden’s son Hunter now includes his joint venture with a Chinese government entity to buy a U.S. automotive technology company with potential military applications.”

    “The ease with which the 2015 transaction was approved by the Obama administration alarmed Senate Finance Committee Chairman Chuck Grassley, who is looking into whether the Obama-Biden White House intervened in the process.”

    I have heard that the Obama’s wealth after President Obama left office is around $100 million.

    The Obamas entered the White House with a $1.3 million net worth in 2008. The Obamas paid $8.1 million for their mansion in Washington, D.C. and reportedly paid $11.75 million for a Martha’s Vineyard mansion on nearly 30 acres.

    Hard to believe that Obamas’ book deals sold enough copies to earn even a small fraction of their wealth.

  3. Trump has painted everything as ‘political’ – meaning for him or against him. This makes science, statistics, clinical medicine, the public good, history and the rule of law all up for grabs…arbitrary and spin-able. First comes subjugation to him (his favor bank of tax cuts , deregulation, guns, racism & anti abortion is the Art of his Deal) then all facts & policy follows. Embrace his defiance and wearing a mask in a pandemic becomes trivial. Hate his critics and no reality can intrude. QAnon & FOX create Orwellian fabrications.
    Terrifying delusional governance.

  4. Looks like a case of ever moving goalposts. Justice Dept. should be held accountable – as should Trump and his nemesis.

  5. Ideological polarization (guns, abortion, etc.) differs greatly from polarization toward individual politicians.
    Seems only one or two Justices would mentally take the position “I stand with Trump” irregardless of the legal principle involved.
    So it seems probable that this decision will be decided on its legal merits.

    But isn’t it a victory of sorts for a slithery defendant to drag out the legal process?

  6. Trump does not care about future implications or precedent-setting; he just doesn’t want to lose. As with many past settlements, he will find yet another way to weasel himself out of trouble, or kick the can down the road.
    One easy possibility is that just before the decision comes out against him, he will agree to supply redacted versions of the information that is being requested. Then negotiations can take place over what and how much redaction will be sufficient. That will stretch it out until the buzzer.

    An aspect of Trump’s playing the system that I don’t see covered much in the blogosphere is how he manages to make fake conflicts, pro-wrestling style, appear to be taken seriously — his team and the Mazars team are in constant cooperative consultation, not merely collusion, and it was reported (though not as widely as it should have been) that Trump was paying for Michael Cohen’s defense attorneys. The idea, or manufactured spectacle, of Cohen ‘turning’ on Trump, is no less of a carnival than the professional wrestling and other reality television enterprises that Trump has been involved in. All of those memes about eating popcorn while eagerly watching a show are right on the money.
    Meanwhile, the GOP and Trump continue what GW Bush’s people promoted — the idea is not to reduce gov’t but to use gov’t to make things easier for those you like and harder for those you don’t, to redistribute profits from the many to the few (your own few) and stick the many with the repercussions.

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