In a way, the U.S. Supreme Court is due.In the 1974 case U.S. v. Nixon, the court decided unanimously that President Richard Nixon couldn’t block the release of the Watergate tapes to investigators. Twenty-three years later, it ruled unanimously that President Bill Clinton wasn’t immune from a civil lawsuit because of his office.On Tuesday, another 23 years later, the high court will again examine one of the toughest, but most fundamental, questions the nation’s highest court can hear: Do the laws that apply to everyone else also apply to the president?
They are questions that implicate the Supreme Court itself, and the balance of American democracy writ large. At a time when the court has grown increasingly deferential to the executive branch, and when this court in particular has a track record of siding with President Donald Trump, these cases carry the potential to rebalance the country’s three branches of government in dramatic ways.Specifically, Mr. Trump is seeking to block subpoenas from the New York County district attorney and the U.S. House of Representatives for personal and Trump Organization financial records held by an accounting firm and a bank he used before entering office.The involvement of third parties here makes the cases distinct from previous presidential immunity decisions – and perhaps harder for Mr. Trump to win than past presidents – experts say. But with some justices on the court having expressed an interest in broadening presidential power and immunity, and with some hints that the court may avoid the merits of the cases entirely, the unanimous rulings of the past may not foreshadow the same result here.“These cases are of tremendous concern not just for what happens with this president, but what happens with the balance of power and the separation of powers,” says Michael Gerhardt, a constitutional law professor at the University of North Carolina School of Law in Chapel Hill.“It’s not his political power that’s at stake, but it’s nonetheless about an individual whose accountability is very important in our system of governance,” he adds. “Democracy is at stake in all these cases. Democracy relies on information flowing and coming to light.”
In two of the cases, the justices may consider whether three House committees have the authority to issue subpoenas to Mazars USA and Deutsche Bank, which did work for Mr. Trump and some of his businesses.But in late April the court signaled that it may avoid that question, asking the parties in the two cases to file briefs on whether the case is a “political question” that would be inappropriate for the judicial branch to address. The court invoked the “political question doctrine” as recently as last term, when it ruled that federal courts could not hear claims related to partisan gerrymandering, and at least one current justice has suggested that it could be relevant here.During a roundtable discussion in 1999, Justice Brett Kavanaugh – a Trump appointee and the newest addition to the court – said that Nixon may have been wrongly decided.“Maybe the tension of the time led to an erroneous decision,” he said. “Should [it] be overruled on the ground that the case was a nonjusticiable intrabranch dispute? Maybe so.”He has since said on several occasions, including during his confirmation hearing, that Nixon should not be revisited. But there could be lower court precedent for the justices to say they can’t weigh in, with the U.S. Court of Appeals for the D.C. Circuit ruling in February that it couldn’t resolve a lawsuit from the U.S. House seeking to subpoena former White House Counsel Don McGahn.Since the subpoenas at issue here are not to Mr. Trump himself, however, and since Mazars has said it’s ready and willing to comply, a ruling that the case is a nonjusticiable political question would be a loss for the president – in the short term, at least. In the long term, such a ruling could give a president broad immunity from congressional investigations“There’s a real cost if the courts are not available to enforce proper subpoenas in proper investigations, and that’s what you have here,” says David Cole, legal director of the American Civil Liberties Union, which has filed amicus briefs opposing Mr. Trump.“If a president just ignores Congress what are they supposed to do?” he adds. “And if a president thinks Congress is violating their prerogative, what are they supposed to do?”
Whether it’s a political question or not, Mr. Trump is making the same broad arguments that past presidents have: that the duties and sensitivities of the office, as the country’s chief executive, top diplomat, and commander in chief, means he should have immunity from legal actions and be able to protect information within the executive branch.In an amicus brief, the U.S. Department of Justice – which will also be participating in oral arguments – noted that the Supreme Court has “long understood” that the U.S. Constitution gives the president immunity from civil and criminal proceedings.“The President’s immunity from state judicial process must be even broader” than federal judicial process, the department writes.State and local prosecutors could use subpoenas to harass or retaliate against a president, and as local officials they have no “incentives to consider the effects of their subpoenas on the Nation as a whole.” The House subpoenas, meanwhile, represent a “law enforcement effort” that House committees are not empowered to perform under the Necessary and Proper Clause of the Constitution, Mr. Trump argues.For many legal scholars, however, the questions raised in these cases should be relatively easy to answer, and they should not come out in Mr. Trump’s favor.With no prosecutorial powers, the House committees argue that the subpoenas are a routine exercise of their oversight and lawmaking powers that the Supreme Court has long recognized. The records being subpoenaed don’t pertain to official executive branch activities, and so should fall outside executive privilege. And while a sitting president may merit immunity from prosecution, that doesn’t mean he should be immune from investigation – particularly when it concerns his private, unofficial conduct.“If states can’t [subpoena] people who happen to become federal officials, that cuts off a significant avenue for holding people accountable for what they’ve done,” says Professor Gerhardt, a constitutional conflicts expert who testified in both Mr. Clinton’s and Mr. Trump’s impeachment hearings.
As straightforward as these cases may appear, however, any case involving a sitting president is complicated and polarizing. Most Supreme Court cases involving Mr. Trump and his administration have been decided in his favor, and in partisan 5-to-4 rulings. In that context Chief Justice John Roberts, the ideological center of the court, could hold the pivotal vote.When he cast the majority opinion that upheld the Trump administration’s travel ban, he added a formal repudiation of the court’s infamous 1944 ruling in Korematsu v. United States, which permitted the internment of U.S. citizens of Japanese descent during World War II. Last term, he joined his four liberal colleagues and wrote the majority opinion that blocked the administration from adding a citizenship question to the 2020 Census, though his opinion acknowledged, with the support of his four conservative colleagues, that the administration had the authority to add such a question.“Both purely jurisprudential factors and broadly reputational factors will be on his mind,” says Ilya Somin, a professor at the George Mason University Antonin Scalia School of Law.Few cases put the reputation of the court as front and center as cases of presidential power and immunity. Supreme Court cases almost always involve tough, complex questions of statutory and constitutional interpretation. These cases in particular strike at the purpose of the court itself and the balance of power across the three branches of government.The high court usually seeks to rule as narrowly as possible, but here even a narrow ruling could be seismic. By removing the judiciary from federal subpoena fights, or broadening presidential immunity in some way, the three branches of government would still be separate, but they might also be less equal.“Democracy is tremendously undercut when one or more branches is able to hide or keep damaging information from coming to light,” says Professor Gerhardt.The three branches, he adds, are designed “to check each other, not for one branch to check out, or one branch to dominate the others. The point of the separation of powers is accountability.”
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