In 1996, when Canadian Prime Minister Jean Chrétien was speaking at an event in Quebec, he shoved a heckler aside. He was charged with assault. In the United States, the broad interpretation of executive privilege could protect the president from being similarly charged. Currently, this immunity is being contentiously debated as President Trump seeks to shield himself from subpoenas over his tax returns. Trump v. Vance asks whether presidential immunity can extend to a third party, which in this case is President Trump’s tax preparer. Vance differs from previous cases in seeking only to collect evidence from a third-party, not the president, and therefore does not violate the Constitution. As such, the Supreme Court should rule in favor of Vance to turn over Trump’s taxes to the judiciary.
On the campaign trail, President Trump famously claimed that he could shoot someone on Fifth Avenue and people would still vote for him. His lawyers argue that presidential immunity would also protect him from criminal indictment if he did so, and that this same immunity applies to the two cases concerning his taxes. Trump v. Mazars centers around a House Oversight Committee’s subpoena of the president’s taxes, and Trump v. Vance concerns a New York prosecutor’s subpoena of Trump’s taxes through his tax preparer, Mazars. These two cases argue for different avenues of subpoenaing documents; the former gives Congress the authority to request Trump’s taxes and in the latter, a grand jury.
The appeal for presidential immunity is easily disputed in Vance. On November 4, 2019, the United States Circuit Court of Appeals ruled that the Manhattan District Attorney was justified in subpoenaing President Trump’s tax returns from Mazars, in investigating Trump’s “hush money payments” to two women from 2015 to 2018 and whether they violate any state laws. The three-judge panel ruled unanimously that any presidential immunity does not apply to the DA’s subpoena for an investigation into potential financial fraud, nor does it protect third-parties, such as his tax preparer, simply because the president is the implicated subject. While it is not required by law for presidents to release taxes as public records, past presidents have done so for good form.
Trump’s lawyers have largely relied upon memos written by the Justice Department’s Office of Legal Counsel, which argue that any criminal indictment of a sitting president would irrevocably undermine the executive branch’s ability to function and perform official duties. The key issue here is that Trump’s taxes from the time when he was a private citizen have no bearing on his current ability to conduct official acts in office, and as such, any references of presidential immunity miss the mark. The absolute immunity that Trump’s lawyers seek goes far beyond the scope of immunity cited in United States v. Nixon and Clinton v. Jones. In fact, as Corey Brettschneider, a professor of constitutional law at Brown University, argues that it is best for the Supreme Court to take up Trump’s case and rule broadly to correct the misguided constitutional assumption that the president is above the law.
The most relevant precedent is set by United States v. Nixon, as Nixon also cited presidential immunity but was unsuccessful in doing so. During the Watergate break-in investigation, a subpoena was issued ordering Nixon to turn over his audio tapes. Nixon refused, citing executive privilege and claiming that the subpoena would compromise his ability to govern. The court ruled 8-0 that Nixon must comply, curtailing the reach of executive privilege. Nixon’s lawyers argued that no matter what the tapes revealed, Nixon was immune from criminal indictment since it would severely undercut the executive branch’s functionality. Despite so, the court ruled against him and he was forced to turn over the tapes. Similarly, Trump’s case should also be subject to the same interpretation against presidential immunity.
Trump’s lawyers highlight a few differences between Vance and Nixon to downplay Nixon’s relevance. First, Trump’s lawyers argue that the president is a “target” in his case, which taints his image and bears stigma. This can easily be refuted because the target is actually Mazars, and Nixon was even named as an unindicted co-conspirator by the grand jury. Second, arguments about interfering with the president’s official duties also fall short as the subpoena only seeks “information relating to the businesses he owns in his capacity as a private citizen,” which does not impact official duties. Moreover, Trump has yet to explain how a subpoena directed at a third party may interfere with his capacity to conduct official duties.
Trump’s claims to immunity are also undercut by the precedent set by Clinton v. Jones, which establishes that the president does not have immunity in civil lawsuits before his time in office and in private acts. Paula Jones sued Bill Clinton for sexual harassment when he was Arkansas governor. The Court rejected Clinton’s argument that civil indictment would cripple the executive branch’s ability to function because the president would be too distracted, and in doing so, opened up presidents’ acts to scrutiny while they were private citizens. The argument of distraction seems trivial at first glance, but it does raise questions about why immunity exists. For example, it would be beyond “distracting” if the president were to govern from jail. While immunity from criminal indictment should be taken seriously, it should not be extended to third-party custodians turning over documents. Of course, “distracting” only goes so far; current impeachment hearings may be distracting but they continue. In citing absolute immunity to cases that do not warrant it, Vance risks crying wolf, jeopardizing the intent and legitimacy behind immunity.
President Trump’s lawyers have pointed to Nixon v. Fitzgerald, in which absolute presidential immunity was preserved. Nixon fired A. Ernest Fitzgerald, then a civilian analyst with the United States Air Force, after Fitzgerald testified about the inefficiencies of the C-5A transport plane. Fitzgerald sued Nixon on the grounds of unfair dismissal. In a 5-4 decision, the Court held that Nixon was immune from a civil suit as the president “is entitled to absolute immunity from damages liability predicated on his official acts.” While firing and hiring are official acts, paying hush money is not. The deeper issue that Fitzgerald raises is potentially broadening the definition of what constitutes an official act as a unique function of the presidency. One could stretch the definition of official act to include allowing presidents to maintain financial confidentiality, but this seems to betray the intent behind the president’s function as invoked in hiring and firing. Moreover, in Nixon and Clinton, official acts may not include endorsing unfair election tactics or sexually harassing an employee, even before the presidency. As such, the DA is right to rule that tax records are unrelated to official acts, and Fitzgerald does not justify Trump’s claims of immunity.
If Trump’s case progresses and if the Court buys his arguments about immunity from criminal indictment, there remains impeachment. The framers created separate impeachment procedures as a natural check against the president, while granting presidents immunity from criminal indictment to preserve the executive branch’s ability to govern. The issue arises when this immunity is abused, as in Trump v. Vance, which mounts an assault on the Constitution. United States v. Nixon and Clinton v. Jones make clear that the president does not have absolute immunity in criminal investigations or civil lawsuits, and Vance, being less severe than both cases, should not escape scrutiny. In Vance, the president cannot cite executive privilege since Mazars’ release of his tax records as a private citizen has no bearing on his ability to govern, nor do they concern official acts. But even if it does, Clinton shows that immunity does not extend to civil lawsuits even pre-presidency. There ought to be limits on the scope of immunity, and the Supreme Court must stop Trump’s abuse of the Constitution for personal protection and rule in favor of the DA’s subpoena.
Photo: Image via The Epoch Times (Flickr)