Symposium: Vance, Mazars, Deutsche Bank: Is the president above the law after all?

Neil Kinkopf is a professor of law at the Georgia State University College of Law.

Trump v. Vance, Trump v. Mazars and Trump v. Deutsche Bank involve the validity of several subpoenas issued for the president’s financial records, most prominently his tax returns. The first sets of subpoenas were issued by congressional committees. Manhattan District Attorney Cyrus Vance Jr. then began a grand jury investigation into the legality of payments made by the president and his businesses. These cases afford the Supreme Court an opportunity to address two important separation-of-powers topics: (1) the scope and content of Congress’ powers of oversight and investigation and (2) the scope and content of the president’s immunity from criminal process. Taken together, the president’s arguments on these distinct points combine to place the president personally beyond the rule of law. It is perhaps not surprising that the president’s lawyers would make such a claim (although it is noteworthy that no president since Richard Nixon has actually done so), but it would be truly alarming were the Supreme Court to vindicate such an extravagant contention.

I. Congress’ powers of investigation and oversight

Chief Justice Earl Warren penned the classic formulation of Congress’ oversight and investigation power in Watkins v. United States:

The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste. But, broad as is this power of inquiry, it is not unlimited. There is no general authority to expose the private affairs of individuals without justification in terms of the functions of the Congress. … Nor is the Congress a law enforcement or trial agency. These are functions of the executive and judicial departments of government. No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of the Congress. Investigations conducted solely for the personal aggrandizement of the investigators or to ‘punish’ those investigated are indefensible.

It is unquestionably the duty of all citizens to cooperate with the Congress in its efforts to obtain the facts needed for intelligent legislative action. It is their unremitting obligation to respond to subpoenas, to respect the dignity of the Congress and its committees and to testify fully with respect to matters within the province of proper investigation.

I apologize for the lengthy block quote, but each side’s argument follows almost mechanically from this passage. Congress cites a wide range of legitimate legislative interests: enforcing the emoluments clauses, investigating potential conflicts of interest, inquiring into foreign interference in elections, inquiring into foreign leverage over the president in his execution of the laws, investigating the efficacy of federal banking laws as they relate to the sorts of business dealings the president has engaged in, and conducting oversight of how the Internal Revenue Service processes presidential tax returns.

Hogwash! say the president’s lawyers: “These subpoenas do not have a legitimate legislative purpose.” Rather, Congress is hellbent on exposing the president’s finances for the sake of exposing them and in order to reap political gain. Congress’ articulated reasons are “makeweight” and the “real reason” is, at best, to reveal presidential wrongdoing — in other words, to engage in law enforcement. As the court said in Watkins, inquiries conducted “for the personal aggrandizement of the investigators or to punish those investigated are indefensible.”

The president’s argument has a certain appeal. It would indeed be hopelessly naïve to imagine that Congress is interested in the president’s tax returns purely for legislative purposes and irrespective of political considerations. Yet the argument suffers from several fatal flaws. Foremost, the Supreme Court has expressly rejected it. The petitioner in Watkins made a nearly identical argument. The court noted that Congress’ motive in that case may have been problematic, “[b]ut a solution to our problem is not to be found in testing the motives of committee members for this purpose. Such is not our function. Their motives alone would not vitiate an investigation which had been instituted by a House of Congress if that assembly’s legislative purpose is being served.” In other words, Congress’ true motive is irrelevant as long as the inquiry actually serves its stated, legitimate purpose.

The assertion that the court should inquire into the actual motive behind government action in order to protect the president’s individual rights is perverse, because up until now the president has insistently taken the contrary position. For example, in the travel ban litigation, the president’s lawyers repeatedly maintained that the court should not inquire into the president’s actual motive for issuing the ban. More recently, the president’s impeachment defense team (which included at least one attorney who is also a counsel of record for the president in Trump v. Vance) insisted that it was improper for the Senate to consider the president’s actual motive for demanding that Ukraine announce an investigation into the Bidens. One can only wonder what will be going through Chief Justice John Roberts’ mind when he hears the president’s lawyers argue that the court should identify Congress’ true motives after hearing them reiterate for hours on end that the Senate should not ask what the president’s true motives were.

The president’s lawyers make a second argument: The committees that issued the subpoenas were not authorized to do so. The rules of the House of Representatives establish the various standing and permanent select committees, define their respective jurisdictions and authorize them to issue subpoenas for matters within their jurisdiction. This would seem to suffice, but the president argues that a clear-statement rule governs the case. Specifically, the president asserts that a law does not apply to him unless it expressly states that it does so, at least when such an application raises a separation-of-powers issue (which, in the president’s view, it always would). But clear-statement rules are rules of statutory interpretation. No court has ever applied them to the internal rules of the House or Senate. Watkins itself notes that “[i]t is, of course, not the function of this Court to prescribe rigid rules for the Congress to follow in drafting resolutions establishing investigating committees. That is a matter peculiarly within the realm of the legislature, and its decisions will be accepted by the courts.” Moreover, this supposed clear-statement rule does not exist. If it did, then the federal courts clearly would have lacked jurisdiction to entertain Paula Jones’ lawsuit against President Bill Clinton. The jurisdiction to hear that case was conferred by the statute that authorizes federal courts to hear cases involving a federal question. This statute nowhere mentions the president, but the district court, court of appeals and Supreme Court all heard the case without ever pausing to consider whether they had jurisdiction to hear a case against a sitting president, and even though doing so raised an obvious separation-of-powers issue. It is not surprising, therefore, that Justice Antonin Scalia and Bryan Garner’s catalog of clear-statement rules in their treatise on statutory interpretation, “Reading Law,” does not mention this particular rule.

This argument can also be read as an application of the avoidance canon, which holds that a statute should be read to avoid raising a serious constitutional question if a plausible alternative reading is fairly available. The president contends that enforcing the House committees’ general subpoena authority against him could interfere with the exercise of his duties. There are two problems with this argument. First, it is not plausible to read a statute (or an internal legislative rule) as embodying an exception that is not expressed or fairly implicit in the statute’s text. Second, the process of enforcing any statutory or other legal duty against the president could potentially burden him and so raise a separation-of-powers issue. Couple this with the fact it is the truly rare law that expressly mentions the president and you have a recipe for exempting the president from all laws. State and federal statutes forbidding the commission of murder, obstruction of justice or the use of torture do not specifically mention the president. As understood by the president’s lawyers, the avoidance canon would make all these laws inapplicable to him. This simply cannot be.

II. The president’s immunity from criminal process

These cases do not present the court with occasion to consider an open and much-debated question of constitutional law: Can a sitting president be indicted or prosecuted? Vance is pursuing an investigation that focuses on potential criminal conduct by Trump committed in 2016, before he was president. The president’s lawyers argue that a sitting president cannot even be investigated for conduct outside the scope of his office (or even committed before he became president) because the president is absolutely immune from criminal process and “the need for this immunity is even more stark when the process is initiated at the state or local level.” “The remedy for wrongdoing by the President is impeachment, not criminal prosecution,” they continue.

Trump’s lawyers have made no bones about the implications of their argument. Even if the president shoots someone on 5th Avenue in broad daylight, state officials may not even investigate the matter.

I do not mean to dwell on the merits of this argument. It is enough to note that it is in serious tension with practice as exemplified in the Kenneth Starr’s investigation into Whitewater and the Lewinsky affair as well as the Watergate investigation, which denominated Nixon an unindicted co-conspirator. It is also in tension with United States v. Nixon (requiring the president to comply with a subpoena for the Watergate tapes issued in the context of a criminal investigation) and Clinton v. Jones (which held that the president’s official immunity does not extend to conduct engaged in before he became president).

I am more interested in tracing the implications of this argument for the rule of law when it is understood in combination with the arguments the president has made against the congressional subpoenas. The president’s lawyers urge that he is not subject to any state criminal process whatsoever, even a preliminary investigation. At the federal level, a sitting president may not be indicted or prosecuted. This leaves the possibility that a sitting president could be investigated by federal authorities. But the president holds “immense power over foreign and domestic affairs.” Attorney General William Barr has opined that this immense power includes the authority to terminate any federal investigation, including an investigation into the president’s own wrongdoing. Thus, the president – alone among all American citizens – cannot be compelled to submit to a criminal investigation. This, his lawyers contend, is merely a consequence of the unique status the president occupies within our constitutional order. Moreover, it is consistent with the rule of law because the president is still subject to impeachment and, if removed from office, to “indictment, trial, judgment, and punishment according to law,” according to the Constitution.

Given both the recent and historic experiences with impeachment, this seems a wholly inadequate response to the rule-of-law concern. But under the arguments made by the president’s lawyers in connection with the House subpoenas, it disappears entirely. Recall that during the impeachment trial the president’s defense team argued that a president may only be convicted for committing a statutory crime. If the court were to accept the assertion that a statute does not apply to the president unless it clearly says so (or that courts should avoid a constitutional issue by declining to construe a statute’s silence to include the president), then no statutory crime will apply to the president.

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The president himself has provided a pithy summary of his lawyers’ arguments: “I have an Article II, where I have the right to do whatever I want as President.” Scalia’s words dissenting in Morrison v. Olson seem apt here:

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish … Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.