The Ukiah Daily Journal

The Supreme Court’s chance to affirm its neutrality

- George Will

WASHINGTON >> 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.

Before congressio­nal Republican­s fell in love with their current 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 the president’s activities as president.

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 Second 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 Bill 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 prepreside­ntial 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.

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