The Supreme Court on Thursday ruled against one such Trump claim in a key arena — unanimously and rather bitingly so.
As Trump has attempted to fend off a New York state subpoena for his financial records, he has claimed absolute immunity in the case. His legal team asserted that a president not only has immunity from prosecution as president but that he has “temporary presidential immunity” even from being investigated.
In a particularly remarkable scene last year, his lawyer even went so far as to say Trump couldn’t be investigated for shooting someone on 5th Avenue in New York City:
… When a judge asked him whether that would also be the case if Trump, as he so famously intoned, shot someone on Fifth Avenue in New York City, [William S.] Consovoy responded in the affirmative.“Local authorities couldn’t investigate? They couldn’t do anything about it?” U.S. Appeals Court Judge Denny Chin asked. “Nothing could be done? That is your position?”“That is correct,” Consovoy said, noting that any crimes could be handled once the president was out of office.
The Supreme Court, in a 7-to-2 opinion by Chief Justice John G. Roberts Jr. on Thursday, rejected that argument, well, absolutely. Even the two dissenting justices acknowledged that Trump’s argument was bunk. And Roberts’s opinion includes some stinging rebukes for the fact that the argument was even made in the first place.
In the opinion, Roberts runs through the court’s long-running history of ruling that a president isn’t immune from federal criminal proceedings. But he notes this is the first time the court has dealt with a local grand-jury subpoena in a state proceeding.
“In the President’s view, that distinction makes all the difference,” Roberts writes. “He argues that the [Constitution’s] Supremacy Clause gives a sitting President absolute immunity from state criminal subpoenas because compliance with those subpoenas would categorically impair a President’s performance of his Article II functions."
Roberts goes on to note how broad an assertion Trump made: “To be clear, the President does not contend here that this subpoena, in particular, is impermissibly burdensome. Instead he makes a categorical argument about the burdens generally associated with state criminal subpoena.”
Roberts also notes, though, that not even then-Solicitor General Noel Francisco, who was tasked with defending Trump to the Supreme Court, was willing to “commit to [Trump’s] bottom line.”
“Instead, the Solicitor General urges us to resolve this case by holding that a state grand jury subpoena for a sitting President’s personal records must, at the very least, ‘satisfy a heightened standard of need,’ which the Solicitor General contends was not met here,” Roberts writes.
Roberts notes Trump’s claim to immunity stems from the idea that such state proceedings might harm his ability to carry out his duties and undermine his leadership. But again, he notes, Francisco wasn’t willing to back that up. Here’s the point at which Roberts seems to point to the ridiculousness of the argument in the first place.
“Notably, the Solicitor General does not endorse this argument, perhaps because we have twice denied absolute immunity claims by Presidents in cases involving allegations of serious misconduct,” Roberts writes.
In other words: This is not a serious argument, which your own lawyer knew and seemed tacitly acknowledge.
Roberts goes on to write that there are significant provisions in place against such investigations being used for deliberately political purposes.
“Given these safeguards and the Court’s precedents, we cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause,” Roberts writes.
Roberts then notes both Justices Samuel A. Alito Jr. and Clarence Thomas — the two dissenters and perhaps the court’s most consistent conservatives — agree with that conclusion, albeit for their own reasons.
Alito writes in his dissent: “I agree with the Court that not all such subpoenas should be barred. … But in a case like the one at hand, a subpoena should not be allowed unless a heightened standard is met.”
Thomas adds in his: “I agree with the majority that the President does not have absolute immunity from the issuance of a grand jury subpoena. Unlike the majority, however, I do not reach this conclusion based on a primarily functionalist analysis. Instead, I reach it based on the text of the Constitution, which, as understood by the ratifying public and incorporated into an early circuit opinion by Chief Justice Marshall, does not support the President’s claim of absolute immunity."
In the end, the idea that the Supreme Court rejected this argument from Trump isn’t surprising. Legal scholars predicted that would be the case, even if they didn’t predict how the broader opinion would land. Indeed, Trump’s legal team has a history of making such far-reaching claims of Trump’s powers and prerogatives, often seeming to argue the most extreme case and hoping the result, even if it didn’t completely bolster their argument, would trend in that direction.
But it’s completely worth noting that, on one of Trump’s most far-reaching claims to his special and powerful standing as president, the Supreme Court was having none of it.