Symposium: Channeling an old chief to reject a new immunity

Toby J. Heytens is solicitor general and Martine Cicconi is deputy solicitor general of the Commonwealth of Virginia, which filed an amicus brief on behalf of 15 states and the District of Columbia in support of the respondent in Trump v. Vance.

Writing for the Supreme Court in Trump v. Vance, Chief Justice John Roberts began with a history lesson. “In the summer of 1807,” he narrated, “all eyes were on Richmond, Virginia,” where “Aaron Burr, the former Vice President, was on trial for treason.” What followed was a courtroom clash notable for its salacious plot of duels, spies and intrigue as much as for its cast of luminary characters: Burr, represented by Edmund Randolph and Luther Martin, both delegates to the Constitutional Convention; President Thomas Jefferson, “orchestrat[ing] the prosecution from afar”; and Chief Justice John Marshall, presiding as circuit justice for Virginia.

The relevance of the Burr trial for Roberts was not its historical color or even the unmistakable message that political scandals are not an innovation of the modern era. It was the result of a peripheral clash between Burr and Jefferson over a subpoena for presidential records. Rejecting the prosecution’s argument that the president’s papers could not be subpoenaed by the defendant, Marshall explained that the president does not “stand exempt from the general provisions of the constitution.” Unlike a king who “is born to power” and can “do no wrong,” the president is “of the people” and “subject to the law.”

The conclusion of that “great jurist” more than 200 years ago formed the backbone of the court’s first opinion on presidential immunity in the 21st century. Relying heavily on the former chief justice’s words and reasoning, as well as the centuries of precedent that followed, the court affirmed the U.S. Court of Appeals for the 2nd Circuit’s decision denying President Donald Trump’s request to block a subpoena issued by the Manhattan district attorney seeking, among other things, his tax returns. “[N]o citizen,” the current chief justice wrote, “not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.” On that point, the court was unanimous. Even the dissenters—Justices Samuel Alito and Clarence Thomas—agreed that Trump’s claim of absolute immunity was unsupported by constitutional text or precedent. As Thomas observed, “the text of the Constitution … as understood by the ratifying public and incorporated into … Chief Justice Marshall[‘s opinion], does not support the President’s claim of absolute immunity.”

The court’s complete rejection of absolute presidential immunity will likely be the most talked-about feature of the Vance decision. And it should be. The court’s holding affirms a fundamental precept of our democracy as old as the republic itself—older even than the Marshall opinion that featured so prominently in the court’s reasoning. No one is above the law.

But the court’s decision is also notable for its recognition of another critical feature of our system of governance—the role of states as separate and independent sovereigns. As the court explained, the president’s claim of immunity from the New York subpoena was premised on the notion that state and local prosecutors are uniquely untrustworthy because they will be compelled to engage in baseless prosecutions of the president to curry favor with constituents who object to the president’s policies. State courts, the president urged, will be unable (or unwilling) to counter those instincts.

The court soundly rejected that argument, explaining that immunity is neither a “necessary or appropriate” response to the purported problem the president identified. “We assume that state courts and prosecutors will observe constitutional limitations,” the court emphasized. If they don’t, there are sufficient safeguards built into state criminal justice systems, including (if necessary) the president’s ability to resort to federal courts to protect the presidential prerogatives.

Unlike in its rejection of the president’s plea for absolute immunity, the court was not unanimous in dismissing his argument that state subpoenas are different. But most of the justices remained unmoved by the latter claim. Even where they disagreed with Roberts’ majority opinion, neither Justice Brett Kavanaugh’s concurrence (joined by Justice Neil Gorsuch) nor Thomas’ dissent focused on the state court origins of the subpoena.

Only Alito was persuaded by the president’s warning about the integrity of the more than 2,000 state and local prosecutors in the country. He alone chastised the majority for “allowing a State’s prosecutorial power to run roughshod over the functioning of a branch of the Federal Government.” The court dismissed Alito’s objection with the same basic logic it applied to the president’s: State and local prosecutors are afforded a presumption that they will act within the scope of constitutional bounds. Failing that, “[f]ederal law allows a President to challenge any allegedly unconstitutional influence in a federal forum.”

The court’s rejection of absolute immunity, and its endorsement of the good faith of state and local officials, will undoubtedly provide the framework for future disputes between presidents and prosecutors endeavoring to subject them to criminal process. That is, of course, if such investigations prove necessary—in more than two centuries, Trump is the first chief executive to warrant such efforts.

Although hardly novel, the court’s affirmance of those basic principles is important and necessary. In a world in which the president and the Department of Justice use the language of presidential authority to shield misdeeds from prosecutors, Congress and the public, it falls to the courts to preserve the balance of power among the branches of the federal government, and between the federal government and the states as independent sovereigns.

If, 200 years from now, another chief justice tells the story of this case the way the current chief recounted the facts of the Burr trial, there is little doubt that the veracity of the court’s holding in Vance will once again be beyond dispute. But the fact that the court reached the right result on presidential immunity shouldn’t obscure our indignation that the question was asked in the first place—especially when Marshall gave us the answer more than two centuries ago.