Supreme Court has chance to affirm it can be neutral
Oral arguments are not the only sounds that will be heard by the Supreme Court next Tuesday.
Before congressional Republicans fell in love with their leader, they embraced a principle from which he claims to be exempt. His Republicans, who believe nothing displeasing to him and everything convenient for him, are now required to believe this: A president should be “categorically immune” to grand jury subpoenas from a local prosecutor even for materials possessed by a third party, materials unrelated to his presidential activities.
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
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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. The court has never held presidents are immune from criminal prosecution while in office, or 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” the nation in the complex, churning spontaneity of its domestic life. The privilege Trump asserts, if validated by the court, would exacerbate the obnoxious tendency of presidents to think of themselves as trailing clouds of glory.
In November, a threejudge panel of the U.S. Court of Appeals for the Second Circuit ruled unanimously against Trump, holding that state prosecutors can compel third parties to surrender a president’s financial information for a 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.”
Trump’s refusal to release his tax returns invites speculation about what he is hiding. His behavior, however, is primarily germane to assessing the Republican Party that since the Whitewater affair of the Clinton years has adjusted its principles about many things, including presidential privileges.