Trump v. Vance presented the most far-fetched legal argument the president has tried yet. As part of an ongoing criminal investigation, Manhattan District Attorney Cyrus R. Vance Jr. served a subpoena in state court seeking Trump’s private business records, including his tax returns. The subpoena was served on Trump’s accountants, not even on Trump himself. The president turned around and brought his own suit in federal court seeking to have the subpoena declared invalid. His argument? That a sitting president is constitutionally immune from any form of investigation.
This claim of “temporary absolute presidential immunity” is absurd, and the unanimous three-judge panel made quick work of it in its ruling Monday. Chief Judge Robert A. Katzmann canvassed a long line of Supreme Court opinions dating to 1807 — most notably the court’s unanimous decision in the Nixon tapes case — that foreclose the idea that the president, alone among citizens, occupies a law-free cocoon.
The panel — three appointees of Democratic presidents — put its actual decision on narrow, and firm, ground. Its precise holding was that presidential immunity “does not bar the enforcement of a state grand jury subpoena directing a third party to produce non‐privileged material, even when the subject matter under investigation pertains to the President.”
The Justice Department entered the case on Trump’s behalf as well, making a more restrained argument that there should be a heightened showing of need in the case of a subpoena involving a sitting president. The court rejected that claim, too, because the Vance subpoena seeks documents that are not covered by executive privilege.
Most lawyers would feel chastised after such a smackdown from the court of appeals (and a federal district court). But neither Trump nor his counsel is playing within the realm of typical professional boundaries.
At oral argument, the court and the parties seemed to agree that the Supreme Court would be the final decision-maker. “We have the feeling that you may be seeing each other again in Washington,” Katzmann remarked.
On Monday, Trump attorney Jay Sekulow immediately announced that the president would seek to have the justices agree to hear the case. Vance, in turn, has agreed to delay the subpoena’s enforcement pending the request for high court review, provided it occur this term — in other words, by the end of June.
The case will provide a strong indication of how strong a backstop the president can expect in the Supreme Court, with two of his own appointees and at least two others known for their bullish views on executive power. Four votes are needed for the court to take the case.
In fact, the 2nd Circuit’s opinion is so narrow and straightforward, and the president’s legal arguments so preposterous, that the case doesn’t merit Supreme Court intervention. It serves little purpose for the court to simply reaffirm the correctness of the 2nd Circuit’s reasoning. My prediction is that the court will let the case pass.
Accepting it for review would send a strong signal that a majority is inclined to reverse the decision of the appeals court. That would represent a huge breach in the ultimate bulwark against presidential lawlessness — and signal the willingness of a conservative court to accommodate Trump’s extreme views about whether a president is, in fact, above the law.