The U.S. Supreme Court has said that “the public has a right to every man's evidence,” and that the principle is “particularly applicable to grand jury proceedings.” But is the principle applicable to the president?
New York County District Attorney Cyrus Vance Jr. served a grand jury subpoena on Mazars USA LLP, President TrumpDonald TrumpFormer defense secretary Esper sues Pentagon in memoir dispute Biden celebrates start of Hanukkah Fauci says lies, threats are 'noise' MORE’s outside accountants, seeking production of eight years’ worth of financial records, including tax returns, six years of which antedate Trump’s time in office, and Donald Trump doesn’t like it.
Trump has stubbornly refused to produce his tax returns, another instance in which he has flouted presidential norms; the last six presidents, from Jimmy CarterJimmy CarterThe massive messaging miscues of all the president's men (and women) The Philippines is a frontline of another cold war Cruz: I hope US athletes 'go over there and kick their commie asses' at Beijing Olympics MORE to Barack ObamaBarack Hussein ObamaBiden celebrates start of Hanukkah The massive messaging miscues of all the president's men (and women) 'Car guy' Biden puts his spin on the presidency MORE, have voluntarily produced theirs for public scrutiny. Two committees of the House of Representatives also subpoenaed Trump’s tax returns, and their case will be heard by the Supreme Court – together with the case of Trump v. Vance – on March 30 with a decision expected in June, well before the November election.
Grand jury proceedings are secret so that, even if Vance wins the case in the Supreme Court, it is highly doubtful that the public will see Trump’s returns any time soon. Vance says his subpoena “targets New York conduct and has yet to conclude as to specific charges or defendants.” He says he is probing secret hush-money payments to adult-film star Stormy Daniels and former Playboy bunny Karen McDougal, and the tax returns are relevant to the inquiry.
As early as 1807, Chief Justice John Marshall held that it is “not controverted” that “the president of the United States may be subpoenaed, and examined as a witness, and required to produce any paper in his possession.” Since Marshall’s time, presidents, such as President Bill ClintonWilliam (Bill) Jefferson ClintonFederal judge changes his mind about stepping down, eliminating vacancy for Biden to fill Joe Biden's gamble with history Can America prevent a global warming cold war? MORE in the case of Clinton v. Jones, have been ordered to give deposition testimony or to provide materials in response to subpoenas.
In particular, “the exercise of jurisdiction [over the president] has been held warranted” in order “to vindicate the public interest in an ongoing criminal prosecution.” In the case of President Richard Nixon, the Supreme Court held unanimously that privileges “are not lightly created nor expansively construed, for they are in derogation of the search for truth.” In the case of Trump v. Vance, the subpoena does not seek the testimony of Trump, as it did in Clinton’s case, or documents in possession of the White House, as it did in the case of United States v. Nixon. There is no claim of privilege, executive or otherwise, over the private tax returns and financial information relating to Trump’s businesses, which he owns as a private citizen.
The resistance to the subpoena comes from Trump in his individual capacity. Attorney General William BarrBill BarrMichael Cohen officially released from prison sentence Incoming NAACP Legal Defense Fund president sees progress against 'revitalized mission to advance white supremacy' Fox's Bartiromo called Bill Barr 'screaming' about election fraud: book MORE’s Justice Department has strangely weighed in on the case on the side of the president, even though no official action by the president is implicated in the subpoena; Trump and Barr assert a “temporary absolute presidential immunity.” Trump contends that such immunity extends to his tax returns, in the possession of his outside accountants. He contends that Article II of the Constitution shields him from a state probe of his finances as long as he remains in office. He claims that the Vance inquiry would distract him from his official duties (although visiting his and other golf courses 262 times since he has been in office does not). He also argues that he is immune from the inquiry because of the Supremacy clause of the Constitution.
On the oral argument, certain justices may ask Vance whether he would indict Trump if the information in the tax returns turned out to be incriminating. The answer has to be, “you bet I would — but maybe you would have to tell me whether I could.” The total answer is that Vance is not seeking to prosecute the president now, but to investigate unprivileged financial records in the possession of a third party.
Vance might remind the court of the hypothetical that if Trump shot someone on Fifth Avenue, as he has boasted he could do with impunity, couldn’t the district attorney investigate the crime, call witnesses before the grand jury and seize the gun for forensic analysis, as would be done in any similar case. And whoever was the shooter, he would have to be brought to justice since, in our country, no one is above the law.
The president “occupies a unique position in the constitutional scheme," the Supreme Court reminds us. “For example, a court may not compel a sitting president to stand trial or give live testimony in open court. (We learned that in the case of Clinton v. Jones.) In the context of a subpoena, the "timing and scope" of any production from the president must be informed by the “high respect that is owed to the office of the Chief Executive." (We learned that in the case of United States v. Nixon.) In the Vance case, in stark contrast to the precedents, the DA is not asking the president to “stand trial” or “give his testimony in open court.” Unlike Nixon, production would not come from the president, but from his outside accountants.
And so, why can’t the prosecutor immediately get the documents, examine the witnesses and otherwise prepare his case before the evidence is lost, witnesses die, memories thin and the case grows cold? None of these traditional avenues of inquiry would intrude on Trump’s exercise of his presidential duties, since the subpoena is served on the accountants and the president is not required to do a blessed thing. Trial on the indictment could wait until after the president leaves office.
And would this mean, mirabile dictu, that any local prosecutor could indict the president for, as Trump suggested, crossing the street against a red light? Not bloody likely!
In June, the Supreme Court will tell us whether “l’état” is that established by the Constitution or is the “l’état c’est moi” – the “unitary executive” – claimed by Donald Trump.
James D. Zirin, a retired partner of the Chicago-headquartered law firm of Sidley Austin, is the author of “Plaintiff in Chief — A Portrait of Donald Trump in 3,500 Lawsuits.” He is a former assistant United States attorney for the Southern District of New York.