The United States Supreme Court said that “the public has the right to every man’s evidence” and that the principle is “particularly applicable to jury proceedings”. But is the principle applicable to the president?
New York County District Attorney Cyrus Vance Jr. participated in a jury subpoena on Mazars USA LLP, President TrumpDonald John Trump Feherhery: Mulvaney adapts to Northern Ireland posts Press: Bernie Sanders has already won The Hill’s Morning Report – Can Trump, Congress agree on the coronavirus package? MOREExternal accountants, who have been looking for financial documents for eight years, including tax returns, of which six years before Trump’s time in office and Donald Trump doesn’t like it.
Trump stubbornly refused to file his tax returns, another case in which he broke presidential rules; the last six presidents, from Jimmy CarterJimmy CarterBiden shows that old dogs can learn new tricks It turns out that voters don’t mind “two old whites” How will FEMA work to respond to the coronavirus outbreak? MORE for Barack ObamaBarack Hussein ObamaBiden shows that old dogs can learn new tricks Bullock announces the race for the Montana Senate seat Juan Williams: Democratic voters reject Bernie’s revolution OTHER, they voluntarily produced their own for public scrutiny. Two House of Representatives commissions also sued Trump’s tax returns and their case will be heard by the Supreme Court, along with the case of Trump v. Vance – on March 30 with a decision scheduled for June, well before the November elections.
Jury proceedings are secret so that even if Vance wins the Supreme Court case, it is highly doubtful that the public will soon see Trump’s returns. Vance says his quote “targets New York’s conduct and has not yet concluded the specific charges or defendants.” He says he’s probing the secret payments of silence for adult film star Stormy Daniels and former Playboy bunny Karen McDougal, and tax returns are relevant to the investigation.
As early as 1807, Supreme Judge John Marshall argued that “it is not counterverted” that “the President of the United States could be summoned, examined as a witness and required to produce any documents in his possession.” Since Marshall’s time, presidents, such as the President Bill ClintonWilliam (Bill) Jefferson Clinton Sanders tries to regain momentum in winning Michigan Biden must first join the party to defeat Trump Trump prepares for a bruise campaign against Biden MORE in case of Clinton against Jones, has been ordered to provide a testimony of filing or to provide material in response to citations.
In particular, “the exercise of jurisdiction [over the president] was deemed “guaranteed” to “claim public interest in an ongoing criminal proceeding”. In the case of President Richard Nixon, the Supreme Court unanimously declared that privileges “are not created lightly or interpreted expansively, since they are in derogation from the search for truth”. In case of Trump v. Vance, the quote does not ask for Trump’s testimony, as in the case of Clinton, nor the documents held by the White House, as in the case of United States against Nixon. There is no claim of privilege, executive or otherwise, on private tax returns and financial information relating to Trump’s business activities, which he owns as a private citizen.
Resistance to the quote comes from Trump in his individual capacity. General Attorney William BarrWilliam Pelham BarrDOJ warns companies against price fixing during coronavirus Consumer brand group asks Barr to protect himself from price collapse due to coronavirus Rand Paul looms jolly in surveillance fight OTHERThe Justice Department strangely weighed on the case on the president’s side, although no official action by the president is involved in the summons; Trump and Barr claim “temporary absolute presidential immunity”. Trump claims that this immunity extends to his tax returns, held by his external accountants. He claims that Article II of the Constitution protects him from a state investigation into his finances as long as he remains in office. He claims that Vance’s investigation would distract him from his official duties (although visiting his and other golf courses 262 times since in office does not). He also claims to be immune from the investigation because of the supremacy clause of the Constitution.
On the oral argument, some judges may ask Vance if he would accuse Trump if the information contained in the tax returns were incriminating. The answer must be “bet I would, but maybe you should tell me if I could.” The total answer is that Vance is not trying to prosecute the president now, but to investigate unprivileged financial documents held by third parties.
Vance might remind the court of the hypothesis that if Trump shot someone on Fifth Avenue, as he boasted, he could have done with impunity, the district attorney would not have been able to investigate the crime, call witnesses to the jury and seize the gun for forensic analysis, as would be done in such a case. And whoever the shooter was, he should have been brought to justice because, in our country, nobody is above the law.
The president “occupies a unique position in the constitutional plan,” reminds us of the Supreme Court. “For example, a court cannot force an incumbent president to stand trial or give live testimony in the open courtroom. (We learned that in the case of Clinton against Jones.) In the context of a summons, the “timing and extent” of any production by the president must be informed by the “great respect that is due to the position of chief executive officer”. (We learned that in the case of United States against Nixon.) In the Vance case, in stark contrast to the precedents, the district attorney is not asking the president to “be tried” or to “give his testimony in the open field”. Unlike Nixon, the production would not come from the president, but from his external accountants.
So why can’t the prosecutor immediately obtain the documents, examine the witnesses and otherwise prepare his case before the evidence is lost, the witnesses die, the memories shrink and the case cools down? None of these traditional avenues of investigation would intrude on Trump’s exercise of his presidential duties, as the summons served the accountants and the president is not required to do a blessed thing. The prosecution trial could wait until the president leaves office.
And that would mean, admirable dictu, that any local prosecutor could indict the president for, as Trump suggested, crossing the street against a red light? It’s probably not damn good!
In June, the Supreme Court will tell us if “l’état” is the one established by the Constitution or is the “l’état c’est moi” – the “unitary executive” – claimed by Donald Trump.
James D. Zirin, a retired partner of Sidley Austin’s Chicago-based law firm, is the author of “Plaintiff in Chief – A portrait of Donald Trump in 3,500 lawsuits“. He is a former U.S. assistant prosecutor for the southern district of New York.