Jamila Benkato and Ben Berwick are counsels, and Justin Florence is legal director, at Protect Democracy. They filed an amicus brief on behalf of former Republican members of Congress, former executive branch members under Republican administrations, and legal experts in support of the respondent in Trump v. Vance.
There has been much focus in the immediate commentary on whether the decisions in Trump v. Vance and Trump v. Mazars are a “win” or “loss” for President Donald Trump. Experts are already gaming out when various documents might be turned over on remand, who might get to see them, and what the decisions mean about a possible criminal indictment sometime during Trump’s presidency. But the decisions should also be assessed in the context of Trump’s overarching approach to his office. And taking that view, Thursday’s rulings mark a full repudiation of Trump’s monarchic view of the presidency.
The fundamental principle underlying our Constitution is that elected representatives hold office to serve the public. This applies particularly to the president, as reflected in Article II’s take care clause and oath of office, which insist on the president’s duty to uphold the law in good faith. (Justice Elena Kagan’s opinion in Seila Law v. Consumer Financial Protection Bureau last week built out this point, drawing on recent historical scholarship).
This is not how Donald Trump views the presidency. A central throughline in Trump’s approach has been his view that the presidency is a tool to personally empower him and provide him with an unlimited ability to protect his interests and punish his perceived enemies. This approach is rooted in a vision of government common to autocracies: that the vast power of the state exists to serve the president’s own personal and political interests, rather than the interests of the country. Daniel Ziblatt, co-author of “How Democracies Die,” put it this way: “(T)his is something that authoritarians always do. They try to transform neutral institutions into their favor.”
So it is no surprise that Trump argued in Vance and Mazars that, because he holds the office of the presidency, he and his personal interests are absolutely immune from investigation by state and local law enforcement or by Congress.
The president’s arguments in these cases are part of a long list of matters in which Trump and his lawyers have sought to place the president above all accountability. In episode after episode, Trump has flipped on its head the Founders’ and the Constitution’s views about the role of our elected representatives. In Vance and Mazars, Trump attempted to use the presidency as a shield to protect his personal business interests. But the president has also claimed an “absolute right” to control the Department of Justice for his benefit — a right extending to shutting down investigations into the president and his associates that might bring to light wrongdoing by the president. Trump’s personal attorney has argued that Trump can shut down any DOJ investigation, and Trump has explicitly claimed the authority to use official powers to instruct DOJ officials to pursue more lenient sentencing recommendations for his political allies. If all else fails, Trump and his attorneys have asserted that he has “absolute right” to pardon himself for any lawbreaking.
Indeed, on the day that the Supreme Court released its two blockbuster decisions dealing with one aspect of Trump’s argument for an unchecked presidency, Geoffrey Berman, the former U.S. attorney for the Southern District of New York, testified about Attorney General William Barr’s efforts to force him out while he was investigating Trump-related matters. Also on the same day, a federal judge sought further appellate review of the Michael Flynn criminal case in which Trump appears to have intervened to let an ally off the hook.
One core feature of Trump’s what’s-in-it-for-me approach to the presidency has been his apparent hope that occupying the Oval Office provides him a get-out-of-jail-free card from serious investigation. We’ve seen that in his defense to impeachment, his manipulation of the Justice Department, his stone-walling of congressional oversight, and his talk of self-pardons (or similarly problematic self-protective pardons).
Trump and his lawyers have played their cards well, and until now they’ve avoided testing Trump’s autocratic approach to the presidency in the Supreme Court. In fact, they’ve consistently claimed that courts have no business determining the limits of presidential power or ruling on whether and how Congress can serve as a check on the president (another argument that was dealt a substantial blow today). But it’s long been clear that at some point the court would weigh in on the limits of Trump’s monarchical claim to being above the law.
We first saw a version of this argument teed up in a defamation lawsuit filed in New York state court by Summer Zervos, a former contestant on “The Apprentice.” Although the context was different from that of Vance, there too Trump made stunningly broad claims of presidential immunity — arguing that the president is completely immune from being sued in state court even when the lawsuit concerns pre-office conduct. He made the same arguments in another New York state case regarding alleged wrongdoing at the Trump Foundation. Our organization filed amicus briefs in both cases on behalf of three scholars who had been amici in Clinton v. Jones. As they explained (again), “No one in our nation is above the law, not even the President.” The court in Zervos agreed, holding that “though he is tasked with significant responsibilities, the President is still a person, and he is not above the law.”
President Trump didn’t heed the New York court’s warning. Trump has pressed similar arguments against congressional oversight (even in the impeachment context) and criminal investigation at every level — his lawyers have even gone so far as to suggest that Trump could not be held accountable for murder committed in broad daylight. As in Zervos, Trump’s view has been repeatedly rejected by federal courts — in New York and D.C., and at the district and appellate level. Now the Supreme Court has spoken and — as it had to — entirely rejected Trump’s extreme argument for a presidency immune from any checks.
As the court recognized in Vance, Trump’s argument for immunity was deeply ahistorical — presidents have been investigated and made to give evidence many times before (and here, we should remember, the New York grand jury subpoenaed a third party, not the president). We filed an amicus brief in Vance on behalf of 37 former Republican members of Congress, former officials in Republican administrations, and legal experts. As the brief argued,
… dating back to the early days of the Republic, courts have balanced the legitimate need to avoid interfering unduly with the president’s duties against the recognition that justice may require that the president be subject to some process. This functional approach to official immunity — repeatedly applied to sitting presidents — rests on the premise that ours is a government of laws, not of men, and that the mere holding of high office cannot excuse an individual from the testimonial duties common to all Americans.
It is critical that the Supreme Court agreed and concluded that Trump’s argument for absolute immunity is inconsistent with the basic framework of U.S. democracy. The Vance majority opinion is deeply rooted in history. Spending over six pages detailing United States v. Burr, an 1807 case involving a subpoena to President Thomas Jefferson, the majority made clear that the historical precedent weighed decidedly in one direction (and against the president). This led it to the Court’s ultimate conclusion:
Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.
To be sure, Chief Justice John Roberts didn’t go so far as to chant “nobody is above the law,” but the concluding paragraphs in his majority opinion make this point loud and clear.
This victory is an important one for the rule of law. But it should fool no one into thinking that Trump will begin behaving as if he is subject to any check on his power. There’s much to worry about and still so much damage Trump can do, including the risk of using his office to interfere in a free and fair election. It’s critical that Congress, state and local officials, federal officials, civil society and, ultimately, the public continue to act as a strong check on his autocratic vision of the presidency. But for now, we can breathe a small sigh of relief: Thursday’s decisions make clear that Trump has not yet corrupted the Constitution or supplanted the basic principle that those in office are bound by the same laws as the rest of us.
Jamila Benkato, Justin Florence and Ben Berwick,
Symposium: A resounding rejection of Trump’s authoritarian approach to the presidency,
SCOTUSblog (Jul. 10, 2020, 12:18 PM),