Oral arguments are not the only sounds that will be heard by the Supreme Court next Tuesday. There will also be the fluttering of chickens coming home to roost.
In 2018, the District Attorney’s Office of New York County, where Donald Trump conducted his businesses before he became a public servant, began investigating possible criminal activities connected with those businesses. In 2019, the office obtained a grand jury subpoena for financial materials, including some tax returns. Trump’s organization balked at producing the tax returns. When the district attorney subpoenaed Trump’s accounting firm for eight years of financial and tax records, Trump claimed absolute immunity as president from any “criminal process,” even when subpoenas are received by a private third party, an accounting firm.
In 1974, the court held (concerning Richard Nixon) that presidents have an “executive privilege” to shield many confidential communications concerning presidential duties. In 1982, the court held (concerning Nixon) that presidents are immune from civil liability for actions taken in office. However, the court has never held that presidents are immune from criminal prosecution while in office, or that they are immune from criminal processes that might lead to prosecutions.
Today’s justices surely regret the perception that the Supreme Court is so politicized that many of its decisions reflect not neutral jurisprudential reasoning but fidelity to the politics of the presidents who nominated the majority of justices. The case to be argued Tuesday gives the court an occasion to mitigate this perception. In 1974, the court, with three Nixon nominees voting in 1974, and in 1997, with two Bill Clinton nominees, unanimously ruled against Nixon and Clinton in separate cases.
Trump argues that anything less than complete immunity from all criminal processes could hinder his performance of his duties and “stigmatizes the President in ways that will frustrate his ability to effectively represent the United States in both domestic and foreign affairs.” Leave aside the grandiose idea that a president — the head of one branch of one of the nation’s many governments — must “represent,” whatever that means, the nation in the complex, churning spontaneity of its domestic life. Nevertheless, the privilege Trump asserts, if validated by the court, would exacerbate the obnoxious tendency of presidents to think of themselves as, and to be perceived as, trailing clouds of glory.
In November, a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit ruled unanimously against Trump, holding that state prosecutors can compel third parties to surrender a president’s financial information for use in grand jury proceedings. Chief Judge Robert A. Katzmann’s decision included this footnote: “We note that the past six presidents, dating back to President Carter, all voluntarily released their tax returns to the public. While we do not place dispositive weight on this fact, it reinforces our conclusion that the disclosure of personal financial information, standing alone, is unlikely to impair the president in performing the duties of his office.”
During Clinton’s first term, many congressional Republicans were white-hot supporters of the special committee that investigated the Clintons’ role in the Whitewater land deal in Arkansas before he assumed presidential duties. The committee held 300 hours of hearings that generated more than 10,000 pages of transcripts. The committee’s work was facilitated by its power to subpoena pre-presidential financial records of the then-sitting president. The Clinton presidency was not paralyzed by this, and Congress has not subsequently been promiscuously intrusive in subpoenaing financial records of sitting presidents. It is unlikely that even today’s president, with his unusual business and personal histories, will be immobilized by the needs of the New York district attorney in connection with possible criminality.
Trump’s refusal to release his tax returns invites speculation about what he is hiding. His behavior, however, is primarily germane to assessing a Republican Party that since the Whitewater affair has adjusted its principles about many things, including presidential privileges. Aside from those fluttering chickens coming home to roost, other fowls come to mind: What is sauce for the goose is sauce for the gander.
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