In a Supreme Court plea that almost surely is unique in American history, President Donald Trump asked the Supreme Court on Thursday to rule that he has “absolute immunity” to being prosecuted or even investigated for any crime while in office—at least if he is pursued by any state or local prosecutor in America. The new filing is the first of two expected appeals by Trump to the Justices growing out of high-stakes constitutional disputes over potential forced disclosure of the President’s tax returns.
This initial filing involves a New York state prosecutor’s demands for personal and business financial records going back eight years. The second appeal, apparently to be filed in a matter of days, involves a congressional committee’s demand for the very same records as those involved in the New York state case. While the first case involves immunity to state criminal exposure and the coming case will turn on the scope of immunity during a congressional investigation, the two will have some constitutional overlap, focused on the law surrounding a President still in office. In both cases, the immunity claims failed in lower federal courts.
Neither case, apparently, would determine when and how President Trump might be prosecuted criminally after he has become a private citizen.
In both cases, the Justices are being asked to move swiftly to settle the immunity claims: that is, to grant review, hold one or more hearings, and issue final decisions during the current Supreme Court term, which is expected to run through late next June. If the Court does take on the controversy (which seems quite likely), the constitutional drama would be unfolding during important months of next year’s presidential campaign (if the President is not removed from office by the current impeachment process in Congress and moves ahead with his present plan to seek reelection). A decision might emerge just as the two major political parties were about to hold their national conventions to choose their nominees for the White House.
The Court might take its first action on this first case as early as December, since the two sides have agreed that their initial round of legal briefs will be completed in 10 days (or by November 25).
In the past, the Supreme Court has ruled only a few times on how the Constitution affects demands that a serving President supply information or answer to a lawsuit or respond to a criminal investigation, but it has never before faced a claim of legal immunity of the sweep now advocated by Trump’s lawyers.
The breadth of that claim was illustrated vividly during a lower court hearing in the New York case, when a member of the President’s legal team said a state or local prosecutor could take no action – of any kind – even if the President, while in office, shot someone on Fifth Avenue in New York City – a variation of a claim by Trump himself as a presidential candidate, as proof of the devotion of his political followers.
While the first appeal makes it plain that the Trump legal team wants a ruling by the Court that would be very broad, this filing is confined explicitly to a claim of immunity to actions by state and local prosecutors investigating potential crimes under state law. Here is the specific question the appeal asked the Justices to decide: “Whether this subpoena [by a state criminal grand jury for tax records] violates Article II and the Supremacy Clause of the United States Constitution.” (Article II created the presidency and spelled out the powers of the office, and Article VI’s Supremacy Clause generally makes the Constitution and federal law superior to state and local laws.)
While parts of the new filing focus on the specifics of the actual subpoena issued to Trump’s accounting firm by the state district attorney in New York City, the document argued that “whether compliance with this subpoena is the wrong question.” The Court, it said, “has always taken a categorical approach to presidential immunity. The Court asks whether this kind of legal process violates the Constitution. … Politically motivated subpoenas like this one are a perfect illustration of why a sitting president should be categorically immune from state and local process.”
Still, if the Justices were to confine their decision solely to the specific subpoena at issue, the filing contended, the state prosecutor’s demand still should be nullified because it is too broad, is not keyed to any specific crime that may be under investigation by the state grand jury, and is nothing more than a direct copy of two congressional subpoenas that have no link to the state case. Before the new filing closed, it suggested the least-narrowest way that the Court should rule: send the case back to the lower courts with the state prosecutor ordered to do more to justify the scope of the demand for tax papers.
The answer that the Justices might give to the specific question the new petition raised, even if the answer goes beyond the specific New York state subpoena, might not resolve even broader claims of presidential immunity, to prosecution for possible crimes under federal law. As of now, the only legal barrier to criminal prosecution under federal law are two internal Justice Department memos concluding that a President may not be charged with a crime while in office. Those memos are not binding on the courts, and they do not rule out a federal criminal investigation.
The case that is scheduled to be filed next at the Supreme Court, involving a subpoena by the House of Representatives Oversight Committees seeking eight years of Trump’s financial records, is expected to raise several questions – ranging from whether the Committee had any power to issue the demand, to whether it is tied in any way to possible federal legislation dealing with the presidency, to whether congressional committees lack the power to investigate whether existing federal laws have been violated.
That case, being appealed to the Justices from a federal appeals court in Washington, D.C., is supposed to be filed under an existing order by the appeals court within the next seven days. The President’s lawyers, however, have told the Reuters News Service that, on Friday, they will ask the Supreme Court to put that case on hold to give his team more time to prepare their formal appeal to the Justices.
Depending upon what schedule is followed in presenting that case to the Supreme Court, it could be possible for the Justices to consider and decide both cases during the current term. They likely would be reviewed separately, because the specific constitutional questions are different even if underlying issues of presidential immunity may overlap in some ways.
Lyle Denniston has been writing about the Supreme Court since 1958. His work has appeared here since mid-2011.
