Next week, the U.S. Supreme Court has one final chance to do the right thing, to stand for truth and justice instead of simply pandering to Donald Trump. On Tuesday, the Court is scheduled to hear one of the most consequential cases ever considered on executive privilege. Trump v Vance concerns a subpoena issued by the Manhattan district attorney to President Trump’s accountants demanding the release of tax returns and other financial documents to a grand jury. What is at stake is no less than the accountability of a president to the rule of law.
Attorney General William Barr has said that Trump, so long as he remains in office, is above the law. We the People disagree. This case may be the deciding factor. That Trump has fought so hard to keep his tax returns a big secret when every other president since 1968 has released multiple years’ tax returns, and even Trump’s Vice President, Mike Pence, has released 10 years’ worth of returns. So, what is he hiding? Some say only the fact that he is far less wealthy than he claims, but I personally think he is hiding something far more important.
Kellyanne’s husband, and co-founder of The Lincoln Project, George Conway, has written an OpEd for The Washington Post that sums it up quite well …
George Conway: No one in this country is above the law. The Supreme Court is about to teach that lesson.
May 8, 2020 at 6:50 p.m. EDT
Twenty-six years ago, I published my first op-ed. Entitled “‘No Man in This Country … Is Above the Law,’” it addressed news reports that President Bill Clinton planned to claim an immunity from having to respond to Paula Jones’s sexual harassment suit. “In a case involving his private conduct,” I wrote, “a President should be treated like any private citizen. The rule of law requires no more — and no less.”
The piece led to my ghostwriting briefs for Jones, including a Supreme Court brief two years later. The Supreme Court agreed unanimously that Jones could proceed, and, like the op-ed, quoted from the Founders’ debates about the status of the president: “Far from being above the laws, he is amenable to them in his private character as a citizen, and in his public character by impeachment.” Which meant that while a president could be impeached for official misconduct, he “is otherwise subject to the laws” — and therefore could be sued — “for his purely private acts.”
I couldn’t have imagined then that another president would challenge that proposition. Then again, I couldn’t have imagined President Donald Trump.
But here we are. On Tuesday, the Supreme Court will hear telephonic arguments in three cases addressing whether Trump can keep his tax and financial information from being disclosed, whether from Congress or criminal prosecutors. In Trump v. Vance, which involves a New York state grand jury investigation, Trump’s lawyers argue that, even when it comes to purely private conduct, the presidency insulates him from the legal process.
The case arises from a criminal investigation into the Trump Organization, and it seems there’s plenty worth examining: whether, as suggested by extensive reporting in this newspaper and other outlets, Trump’s businesses may have dodged taxes. And whether Trump’s hush-money payments, made through his lawyer Michael Cohen to porn star Stormy Daniels and former Playboy model Karen McDougal, violated state law. (Cohen pleaded guilty to federal crimes arising from those payments, which the U.S. attorney’s office in Manhattan said were made “at the direction of Individual-1” — Trump.)
The state grand jury subpoenaed the Trump Organization and Trump’s accounting firm, Mazars, seeking tax returns and financial records. Trump sued to block the subpoena to Mazars — on the ground that he’s president. The lower federal courts rejected his pleas, and now he’s in the Supreme Court. Where he will lose — or should.
To say Trump’s argument is frivolous demeans frivolity. Clinton v. Jones dictates the result: The subpoenaed documents have nothing to do with Trump’s presidential duties — zip. That alone does it.
But Trump’s case is even weaker than Clinton’s. At least Clinton was being sued personally. He ultimately had to give evidence himself, which he did (infamously) at a deposition. But because the suit had nothing to do with presidential duties, the Supreme Court said it could proceed.
Here, Trump hasn’t been charged with or sued for anything. He’s not being required to do anything. The subpoenas have been directed at his company and his accountants. They don’t require his time or attention.
Trump’s position stupefies. In essence: Authorities can’t investigate anything touching his personal affairs — including, ahem, payments to pornographic actresses — because he’s president. Think of the logic: Not only does the president enjoy a personal constitutional immunity — his businesses do, too.
It doesn’t matter that Trump challenges a criminal inquiry, while Jones involved a civil suit. Whether a sitting president can be indicted remains unsettled, but Trump hasn’t been charged. In fact, presidents have given evidence in criminal matters many times — including ones touching them personally. Chief Justice John Marshall ordered President Thomas Jefferson to produce documents in Aaron Burr’s treason case. A unanimous Supreme Court ordered President Richard Nixon to turn over the Watergate tapes, and rejected a claim of presidential privilege — in a case in which Nixon was named an unindicted co-conspirator. Clinton provided grand jury and criminal trial testimony in the Whitewater and Lewinsky investigations — matters in which he was potentially a target.
Trump complains nonetheless that letting 50 states conduct investigations involving presidents would endanger the presidency, as well as federal supremacy. A short answer is one the court gave in Jones, where Clinton raised the specter of countless private plaintiffs bringing meritless suits: Courts can address vexatious litigation case by case, and if that doesn’t suffice, Congress can legislate a fix.
A more fundamental answer, though, may be found in an amicus curiae brief in the Vance case, a brief submitted by the Protect Democracy Project and joined by me and 36 other conservatives: “The Constitution is concerned with the supremacy of federal law, not the supremacy of federal officials.”
Likewise, the Constitution is concerned with protecting the presidency, not the person who happens to be the president. That’s because no one in this country is above the law. The Supreme Court is now called upon to teach that lesson once again — even if Trump will likely never learn it.
When this case is decided, we will know two things once and for all: 1) Do we still have an independent, non-partisan Supreme Court that decides cases on merit? 2) Do we have a president, or have William Barr, Mitch McConnell, and now the Supreme Court turned the presidency into an autocracy? Stay tuned …