• Allon Advocacy

The President v. The Supreme Court

President Donald Trump and John Roberts, Chief Justice of the United States

If you think a potential federal government shutdown is the only potential calamity barreling down on Washington, D.C., think again. While Congress is trying to pass another stopgap spending bill, the nation’s capital soon could find itself in the middle of a constitutional crisis.

Lawyers for President Donald Trump this week asked the U.S. Supreme Court to review a 2nd U.S. Circuit Court of Appeals ruling, and that request will require the court’s nine justices to decide how far presidential immunity or privilege extends. Or, as The New York Times put it, the case will “produce a major statement on the limits of presidential power,” and “test the independence of the court itself.”

Supreme Court cases regarding privilege and immunity are very limited, but before diving into history, like any good constitutional law student let’s first review the facts of the case.

The 2nd U.S. Circuit Court of Appeals’ ruling authorized the Manhattan district attorney (DA) to enforce a subpoena to obtain President Trump’s tax returns from his accountant. President Trump’s attorneys have argued the records should be off limits because presidents are immune from criminal investigations while in office. (The Manhattan DA wants the files for an investigation into wrongdoing the Trump family real estate business.)

It is, of course, not the first time a sitting president has made this argument.

Citing presidential immunity, in the 1997 Supreme Court case Clinton v. Jones lawyers for President Bill Clinton argued a sexual harassment case against him, stemming from events that allegedly occurred when Clinton was Arkansas governor, be dismissed. The court ruled against him—unanimously—and in doing so established a precedent that a sitting U.S. president does not have immunity from federal civil litigation related to acts carried out before taking office, or unrelated to that office.

In the court’s decision, Justice John Paul Steven noted, “In the more than 200-year history of the Republic, only three sitting presidents have been subjected to suits for their private actions.” Not one of those cases went to the Supreme Court. According to The New York Times, suits against Presidents Theodore Roosevelt and Harry Truman were dismissed, and a matter involving President John F. Kennedy was settled.

If President Trump is not encouraged by precedent related to presidential immunity, he could try asserting executive privilege. He has not … yet. Even if he does, court precedent still does not bode well from him. More than 45 years ago, Leon Jaworski, the special prosecutor in the Watergate case, sought access to President Richard Nixon’s audio tapes of White House conversations. President Nixon argued executive privilege allowed him to keep the recordings under wraps.

Supreme Court justices did not agree.

In a unanimous decision on July 24, 1974, as the National Constitution Center tells it, “the U.S. Supreme Court dealt a fatal blow to President Richard Nixon’s presidency” by ordering the tapes to be released. Chief Justice Warren Burger wrote, “We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”

President Nixon resigned within three weeks of that decision.

The term executive privilege is not in the U.S. Constitution, but the idea goes back to the nation’s early years. As Time explains, in 1792, Congress requested that President George Washington “turn over documents related to an unsuccessful military operation against Native Americans.” President Washington and his cabinet believed release of these papers “would injure the public.” Washington also claimed executive privilege when Congress requested documents related to negotiation of a treaty with England.

President Dwight D. Eisenhower actually coined the term executive privilege, but American chief executives have used power regularly since President Washington. As The Washington Post has explained, President Andrew Jackson asserted it was when the U.S. Senate asked that he turn over a list of advisers with whom he consulted before moving money from the national bank to state banks. (Congress never got the documents.)

President Grover Cleveland expanded the meaning of the power when he used it to keep documents regarding presidential appointments from the prying eyes of Congress. President Teddy Roosevelt refused to give the U.S. Senate papers regarding the antitrust prosecution of U.S. Steel Corp. Roosevelt said, “The only way the Senate or the committee can get those papers now is through my impeachment.” (Readers will remember that trust-busting Teddy was not impeached.)

When President Eisenhower ordered his defense secretary not to testify at the McCarthy hearings, he said “I will not allow people around me to be subpoenaed.” President Ronald Reagan invoked executive privilege three times though, interestingly, not in relation to the Iran-Contra affair, which arguably was the biggest scandal of his presidency.

President Barack Obama asserted the right when the U.S. House of Representatives wanted Attorney General Eric Holder to turn over papers related to the Justice Department’s Mexican gun-smuggling sting, Operation Fast and Furious.

According to National Public Radio (and the Obama White House), President George W. Bush asserted executive privilege six times, including to keep top aide Karl Rove from testifying before Congress in its investigation into the dismissal of nine federal prosecutors.

It is clear, then, that presidents have tried to exercise executive privilege generally only has been used in matters relating to the president’s official duties.

At least a couple of cases, though, make matters a little murky.

President Thomas Jefferson asserted executive privilege during the treason trial of Aaron Burr. (Burr was accused of trying to start a revolution in several states in the American Midwest.) Supreme Court Chief Justice John Marshall tried to get the president to turn over documents, and to testify. Though he eventually gave in to Marshall’s request, President Jefferson said the nation’s chief executive must be able to “decide, independently, what papers coming to him as President, the public interest permit to be communicated, and to whom.”

There also is President Clinton (again), who tried to exercise the right 14 times, all, according to The Washington Post, during the investigation by independent counsel Kenneth Starr that had little to do with policy matters, or official duties (to put it mildly). In 1998, a federal district court judge ruled President Clinton could not rely on executive privilege to keep White House aides from testifying before Congress in the Monica Lewinsky case.

Remarkably, though, the Supreme Court has ruled on executive privilege only one time in its history—in that 1974 Nixon case ruling.

There also is this fact: the U.S. Department of Justice (DOJ) has found investigations like the one being carried out by the Manhattan DA should be allowed to move forward.

According to NBC News, a 2000 memo from the DOJ’s Office of Legal Counsel concluded that, while sitting presidents cannot be prosecuted, they can be investigated. Even if a president is immune from indictment, the memo said, “a grand jury could continue to gather evidence throughout the period of immunity, even passing this task down to subsequently impaneled grand juries if necessary.”

While an examination of court precedent, and DOJ rulings, does not look good for the White House, it is important to remember that the Supreme Court does not have to grant the president’s request to hear the case at all. If that happens, the lower court ruling would stand and the Manhattan DA would get President Trump’s tax returns.

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