Thus, Trump announced that the administration, abandoning its duty to take care that the laws be faithfully executed, would not defend the constitutionality of the Affordable Care Act.
Thus, administration lawyers urged the federal appeals court in Washington to declare that Congress has no right to go to court to enforce subpoenas of executive branch officials and, separately, no standing to sue over White House redirection — that is, hijacking — of appropriated funds to build the border wall.
And thus, Trump’s lawyers — both his private counsel and administration lawyers supposedly representing the presidency — will be before the Supreme Court on Tuesday, to argue against the legitimacy of subpoenas by Congress and a state grand jury for Trump’s financial records.
It’s important to fit these cases into the skewed architecture of his legal worldview: A sitting president cannot be criminally prosecuted; the only remedy is impeachment. However, the president is free to direct officials not to testify or provide documents when he deems the impeachment a “hoax.” If the House wants the material, it should issue a subpoena, except it can’t; see the federal appeals court case, above.
Now, at the Supreme Court, the question isn’t whether Trump can be indicted or impeached — it’s whether he or his businesses can be investigated by anyone at all. Not for anything he’s done as president, but in his private life. Not by demanding documents or testimony from him, but from third parties — his company, accountants and bankers.
In the world according to Trump, Article II shields him from this vexatious nonsense. “When you’re a star, they let you do it,” Trump said on the “Access Hollywood” tape. Trump’s Article II corollary: When you’re a president, you don’t have to let them do it.
The first two cases involve subpoenas issued by House committees to Trump’s accounting firm and the banks that lent him money for various projects. Trump argues that the subpoenas exceed the bounds of Congress’s investigative authority. The Justice Department asserts that courts should require extra justification for such subpoenas when the president is involved because this use of congressional power “poses a serious risk of harassing the President and distracting him from his constitutional duties.”
Pardon me while I guffaw — and flash back to the Whitewater inquiry, when conservatives seemed to have no such compunctions about subpoenas for documents and testimony from, yes, the sitting president’s personal accountants, and for Hillary Clinton’s law firm billing records. While an independent counsel was investigating the Clintons’ real estate investments.
Guffawing, too, over the Trump lawyers’ self-pitying lament that Democrats, upon retaking the House after the 2018 midterms, unleashed a barrage of subpoenas. Not only did Republicans do the same to a Democratic president when they regained control in 2010 but, over Democratic protests, they relaxed the subpoena rules to let the majority act unilaterally.
Every administration chafes at congressional investigations; of course there are political motivations. That is part of the checks and balances the Founders envisioned. Effectively dismantling congressional oversight, as Trump wants, would not further the arrangement the Founders envisioned; it would undermine it.
The third case involves a state grand jury investigation by Manhattan District Attorney Cyrus R. Vance Jr. The grand jury subpoenaed the Trump Organization and Mazars, Trump’s accounting firm, for tax and financial records. In arguing that the subpoena should be quashed, Trump goes far beyond contending that a sitting president can’t be indicted — he asserts that he can’t even be investigated. He is “absolutely immune” from “criminal process.”
His lawyers ignore that a unanimous Supreme Court ordered President Richard M. Nixon to turn over Watergate tapes to a federal grand jury. They ignore that a unanimous court allowed Paula Jones’s civil sexual harassment lawsuit against President Bill Clinton to proceed while he was in office. “Like indictment itself, criminal process of this kind will inevitably distract the President from his unique responsibilities and burden his ability to act confidently and decisively while in office,” the lawyers contend. “It also stigmatizes the President in ways that will frustrate his ability to effectively represent the United States in both domestic and foreign affairs.”
Oh, please. It would be a problem if multiple local prosecutors were besieging a president with subpoenas, but that’s not what’s going on here. Vance has ample reason to investigate the goings-on at the Trump Organization. That can be accomplished without “distracting” or “stigmatizing” the president. Preventing the prosecutor from doing his work would not only insulate the president, it would also shield others subject to investigation so long as Trump is in office. “No principle of constitutional law justifies that outcome,” Vance writes.
Unless it is the Trumpian principle, that Article II gives him “the right to do whatever I want.” It is up to the justices — Article III — to renounce this dangerous misconception.