'Presidents are not kings' — but neither is Congress above the law

District Judge Ketanji Brown Jackson does not seem to understand how our constitutional system of checks and balances is supposed to work. Our system of government creates three separate and coequal branches. Each is supposed to check and balance the other. In the nature of things, when a president and Congress disagree, then it is the judicial branch, headed by the Supreme Court, that ultimately decides on the matter.

President TrumpDonald TrumpWhat blue wave? A close look at Texas today tells of a different story Democrats go down to the wire with Manchin Trump's former bodyguard investigated in NY prosectors' probe: report MORE was therefore absolutely correct in demanding that his subordinates not comply with the numerous congressional subpoenas seeking disclosure of privileged material until and unless the courts order them to do so. Judge Jackson has now decided, exactly as I predicted weeks ago, that subpoenaed executive branch officials must “show up” in response to congressional subpoenas but may then refuse to answer specific questions that require disclosure of privileged information.

Her decision could have been written in five pages but, instead, Judge Jackson decided to produce a long constitutional and historical essay deciding cases that were not before her, such as those involving national security. In straying well beyond her role to decide only the cases and controversies before her, Judge Jackson has tilted the balance against the executive branch and in favor of the legislative branch. She is of course correct, if anachronistic, in declaring that presidents are not kings.


But Judge Jackson is wrong in suggesting that legislatures are also not constrained by the Constitution. James Madison, the father of our Constitution, insisted that our republic should not be turned into a parliamentary democracy in which the legislature is supreme and the president serves at its will. That is why he insisted on specific, daunting criteria for impeachment, “treason, bribery or other high crimes and misdemeanors,” rather than “maladministration,” as some framers had suggested. The job of the judiciary is to strike an appropriate balance between the powers of the executive and the legislative in a republic. It is not simply to rubber stamp whatever the legislative branch demands.

Most reports of the decision by Judge Jackson simply get it all wrong. The New York Times story makes the reader wait until the 16th paragraph to see that the decision is only about whether White House counsel Don McGahn must show up and “leaves unanswered whether the questions that lawmakers want to ask him,” primarily about conversations with President Trump detailed in the special counsel report, “are subject to executive privilege.” In other words, the big winner in the decision is Uber, because all this new ruling required McGahn and other members of the executive branch to do is to make the trip to Capitol Hill. Even if this decision is upheld by the Supreme Court, the executive branch will have to decide whether and when to invoke its privileges, and the courts will then have to decide these issues on a question by question basis.

Congress is a long way from obtaining the information it is seeking. The decision yesterday was the beginning of the Uber rides to Capitol Hill. There will be many more such rides, each one raising constitutional issues. Democrats are wrong in suggesting that President Trump invoking executive authority to preclude Congress from hearing conversations he had with other executive branch officials is, in itself, an impeachable offense. Our system of checks and balances requires that the president be free to demand that Congress seek to enforce its orders through the courts. That is the way checks and balances operate. The president is not free to ignore a final order by the Supreme Court, just as Congress is not free to ignore such an order, but both branches are free to seek it.

The Supreme Court has now also temporarily stayed an appellate court decision requiring the accounting firm for the president to disclose his tax records. If the Supreme Court decides to hear this case and another one growing out of the New York district attorney subpoena of his tax records, it may confront the fundamental question of whether a sitting president can be criminally investigated, prosecuted, and convicted for alleged criminal conduct that occurred before or during his term in office.

These cases demonstrate that our system of checks and balances works. This president is doing what past presidents have often done by trying to preserve the power of the executive branch and the right of a president to the confidential advice of his subordinates. This Congress is doing pretty much what other Congresses have done through the years by trying to maximize oversight power with regard to the executive branch. Finally, the judiciary is doing what it is supposed to be doing by resolving disputes between the other two branches in a principled and nonpartisan way.

Alan DershowitzAlan Morton DershowitzWe should recognize the progress we've made on discrimination Mandated vaccinations have historic — and legal — precedent Dershowitz files multimillion-dollar lawsuit against Netflix over portrayal in Epstein series MORE is professor emeritus at Harvard Law School and author of “The Case Against the Democratic House Impeaching Trump” and “Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo.”