The case involves records sought by the Manhattan district attorney, Cyrus R. Vance Jr., from Trump’s accountants, Mazars, relating to potentially illegal uses of New York financial institutions to pay off women who claimed they had sexual affairs with Trump. The president’s private company, the Trump Organization, reimbursed Trump’s attorney Michael Cohen after Cohen made some of these payoffs from his own personal funds.
What are the implications of the Vance decision for the president’s legal position? The Supreme Court ordered the case back to the District Court, which we fully expect to affirm the Supreme Court’s message and require Mazars to turn over the president’s tax returns and other financial records to the Manhattan district attorney. These records will then be part of a criminal investigation, and the grand jury will have to decide if there is probable cause to believe that the president, or perhaps the Trump Organization, committed a crime.
What would happen if they do find such probable cause? Would the president then be indicted? Could he be indicted while he is still in office? The majority opinion studiously avoids the question. But a criminal prosecution of the president is highly unlikely in this case until after the president leaves office. For one thing, Vance himself, after some equivocation, agreed to assume, for the sake of argument, that a sitting president “is not amenable to criminal prosecution.” It is critical to notice, however, that the court’s opinion indirectly suggests support for the proposition that there is no constitutional bar to indicting a sitting president, a position for which we argued in our amicus brief in this case.
Indeed, the president’s own lawyers have unwittingly lent support to this conclusion. The strategy they took was to argue that if it were possible to investigate a sitting president, it would have to be possible to indict him, too. But, they argued, since we know a sitting president cannot be indicted, he cannot be investigated, either. That was a losing gambit.
Now the Supreme Court has made clear, beyond a shadow of a doubt, and with unanimous support, that a sitting president can be investigated and is subject to subpoenas in criminal cases. It therefore follows, inevitably and unavoidably, that a sitting president can also be indicted. If, having examined the financial records it will receive from the president’s former accounting firm, a Manhattan grand jury finds there is probable cause to believe that the president committed a crime, Trump v. Vance implies that there is nothing in Article II that would prevent his indictment.
The prospect of indictment of a sitting president is the clear implication of the majority opinion. This emerges as well from a careful reading of Justice Samuel A Alito Jr.’s dissent, where he devotes a full two pages to a parade of horribles that could ensue if a president were to be indicted while in office. Just about all of his projections — including a comical scene he paints of a president sitting in one jail cell and his aides in another — suggest that Alito perceived and understood the constitutional implications of saying that a sitting president can be investigated and served with subpoenas. If there is no constitutional principle that says a sitting president is immune from being criminally investigated, there is no constitutional principle that says he cannot be served with an indictment, either.
There may, of course, be pragmatic reasons for delaying a criminal trial of a sitting president. Two memorandums from the Office of Legal Counsel lay out the reasons for deferring any such prosecution until after a president leaves office. A criminal trial of a sitting president could be highly disruptive of official duties in some circumstances. Depending on the amount of disruption involved, along with the urgency of addressing the alleged criminal conduct, there might be good grounds for delaying the start of trial. But notice that indicting a president while he is in office does not imply that a trial would occur before the president’s departure from office. Just as investigation does not necessitate indictment while in office, indictment does not necessitate trial. The Office of Legal Counsel memos have been misunderstood widely as suggesting a constitutional basis for the reluctance to indict a sitting president. This is a proposition the Vance case impugns.
There could be reasons it would be infeasible to delay the indictment of a sitting president until he left office. If the president posed an immediate danger to the community based on crimes he continued to commit, it would bolster the case at least for indicting him while he was still in office, sending a clear message that his conduct was criminal and a warning to him and others assisting him to desist. Or, if there was a risk the statute of limitations would expire on the crimes the president committed, that would supply a basis for indicting now, even if the trial were held after the end of the president’s final term in office.
Lawyers in the Office of Legal Counsel memos made the politically convenient argument that the statute of limitations should be “tolled,” or paused, under these circumstances, but others disagree, and there is no guarantee this view would prevail in court. If Trump was to be reelected in November, therefore, and sworn in for another four years, Vance, or a prosecutor in another jurisdiction, might be confronted with a situation in which waiting for Trump to leave office would forfeit the opportunity to prosecute.
The essential point, as the reasoning in the Vance case implies, is that the benefits and burdens of prosecuting a sitting president are pragmatic, not constitutional. Article II simply has nothing to say about this matter.
The decision in Trump v. Vance is a repudiation of the most extreme version of a theory of presidential authority known as the “unitary executive theory.” Originally a thesis about the ability of the president to remove other executive branch officials at will, the unitary executive thesis has over the years transformed into a thesis about the president’s power to defy other sources of governmental authority, such as Congress and, in this case, the criminal justice system.
The theory of the unitary executive has been invoked in a variety of novel settings, including the removal of executive branch officeholders who are conducting investigations into the president’s conduct. It was also used in the Bush administration to argue for the president’s broad-based authority to conduct the war on terrorism and to justify the use of torture. Trump has used his presumed presidential powers under Article II to fire his FBI director, James B. Comey, for refusing to curtail the Russia investigation, to threaten to fire special counsel Robert S. Mueller III for continuing that investigation, to fire several inspectors general from federal agencies, to remove the United States attorney for the Southern District of New York in the middle of politically sensitive investigations, and to divert funds appropriated by Congress to build a wall on the U.S.-Mexico border against the express wishes of Congress.
Whether these acts will withstand judicial scrutiny remains to be seen. Trump v. Vance, however, puts one iteration of the unitary executive thesis — the myth of presidential immunity from criminal process — back in its place. As Chief Justice John G. Roberts Jr. wrote for the majority, quoting Chief Justice John Marshall, “a king is born to power and can ‘do no wrong.’ The president, by contrast, is ‘of the people’ and subject to the law.”