The US presidency: Supreme Court hears most important executive power cases since Nixon and Clinton

Michael Goldhaber, IBA US CorrespondentMonday 18 May 2020

On 12 May, the United States Supreme Court began hearing oral arguments by phone in three test cases on President Donald Trump’s long sought-after tax returns. The President has personally sued to stop his accountants at Mazars obeying subpoenas issued by the House of Representatives committee on oversight and reform and separately by a New York State grand jury. In parallel, President Trump is suing to stop his bankers at Deutsche Bank and Capital One from abiding by subpoenas from the House intelligence and financial services committees. Richard Painter, chief White House ethics lawyer during the administration of George W Bush, says these are the ‘most important executive power and immunity cases since US v Nixon and Clinton v Jones.’

The subpoenas target a wide range of the President’s financial records, including tax returns since 2010, and suspicious activity in bank accounts related to the President or his son-in-law Jared Kushner. It’s unknown who the New York grand jury aims to indict and for what. The House investigators’ avowed goals are to uncover money laundering or corruption in the President’s business life, and any foreign entanglements that might give a US adversary influence, as well as to inform House bills on executive corruption and foreign influence.

The argument put forward by Donald Trump, and the Solicitor General as amicus, is shocking from the standpoint of the evolution of executive authority

Claire Finkelstein
Director, University of Pennsylvania Center for Ethics and the Rule of Law

US v Nixon and Clinton v Jones unanimously held that neither a Democratic nor a Republican president is immune from investigation, in the contexts of either the federal grand jury probing Watergate or the civil harassment suit brought by Clinton paramour Paula Jones. Yet President Trump seeks immunity from subpoenas in the contexts of a state grand jury and House oversight.

‘The argument put forward by Donald Trump, and the Solicitor General as amicus, is shocking from the standpoint of the evolution of executive authority,’ says Claire Finkelstein, who filed an opposing amicus brief as director of the University of Pennsylvania Center for Ethics and the Rule of Law. That a sitting president cannot be indicted, as the Department of Justice (DoJ) has long maintained, is a mainstream if disputed position among constitutional scholars (and unsettled in the courts).

The DoJ’s shocking new leap is that a sitting president is immune even from investigation. To so hold would offend the Anglo-American precept, cited by Watergate special prosecutor Archibald Cox, that ‘no man except the king is wholly free from the testimonial duty to give evidence.’ The creeping ‘elimination of checks on the executive branch,’ Painter and Finkelstein warn, would ‘fundamentally alter the basic principles of accountability on which our democracy depends.’

All three circuit rulings made short shrift of the President’s arguments (albeit with a dissent by a Trump appointee on the DC Circuit). In the Deutsche Bank case, a Second Circuit panel including two George W Bush appointees agreed that Congress’ fulfillment of its oversight function is ‘far more significant’ than the proffered public interest in saving the President from the ‘distraction’ of a subpoena. Finkelstein and Painter argue that the real tradeoff is between the rule of law and the President’s selfish interest in concealment, because these subpoenas wouldn’t take any of his time. (Authorising others to share his taxes would take less effort than ‘a single round of golf,’ they note).

Most Supreme Court watchers were confident that a majority will reject the President’s aggressive legal claims. But a last-minute request for briefing on justiciability raises the suspense. Regardless of the case’s merits, some justices seem to wonder whether inter-branch relations are too partisan for the Court to adjudicate. This raises the possibility that the Court will dodge the question of executive immunity in the House oversight cases – while pushing back on the President in the grand jury case.

Constitutionally that would be something of a split decision, though it would radically eviscerate congressional power. What’s more, a restrictive ruling on the Court’s power to hear inter-branch disputes would effectively bless the President’s maximal claim – in both the Russia and Ukraine hearings – that his immunity gives his advisers the right to stonewall Congress. Here, the key test case is that of ex-White House counsel Don McGahn, argued before the DC Circuit en banc on 28 April. ‘These different claims all come from the same misreading of presidential authority,’ says Finkelstein. ‘[To accept it] would give the President carte blanche to obstruct any inquiry.’

To the extent the President’s real goal is to hide his tax returns from the public before November, he might regard it as a total political victory to show them only to a grand jury. After all, a grand jury is sworn to secrecy, and far less apt to share its documents with the public than Congress.

Painter remains optimistic that a majority of the Court will hold the line on executive immunity. But he still fears the Court will enable the President to keep his secrets up to and possibly beyond Election Day. With arguments already delayed by the Covid-19 pandemic, the Court’s ruling may push past June. Then the President might return to court, and argue that Congress can’t show the public his taxes. ‘The name of the game is delay,’ says Painter. ‘I think the Court will rule against Trump late enough in the game that he’ll find some other ways to stall before we reach November’.