The New York Review of Books - USA (2020-04-09)

22 The New York Review

Trump Is Not Exempt

David Cole

During the 2016 presidential cam-
paign, Donald Tr u mp boasted, “I cou ld
stand in the middle of Fifth Avenue
and shoot somebody and I wouldn’t
lose any voters.” He now argues that
as president he couldn’t even be in-
vestigated for doing so. In three cases
that have reached the Supreme Court,
Trump is seeking to block subpoenas
issued in connection with investiga-
tions of his conduct as a private citizen.
In Tr u m p v. Va nc e, the district attor-
ney of New York City, Cyrus Vance Jr.,
subpoenaed Trump’s personal financial
records, including his tax returns, for a
grand jury investigation into whether
several people committed crimes by
paying hush money to an adult film
star, Stormy Daniels, to stop her from
talking about her sexual relations
with Trump in 2006, while his wife,
Melania, was recovering from giving
birth to their son, Barron. In two other
cases, Tr u m p v. Mazars and Tr u m p v.
Deutsche Bank, congressional com-
mittees have sought similar records in
connection with oversight hearings on
whether Trump has conflicts of interest
with foreign institutions and officials,
has misstated his assets to avoid tax
liabilities, or has violated financial dis-
closure obligations.
These subpoenas are directed not
to Trump himself but to his account-
ing firm, Mazars USA, and two banks,
Deutsche Bank and Capital One. (In
all three cases, Trump sued the sub-
poena recipients to bar them from
complying, as well as the prosecutor
and congressional committees that is-
sued the subpoenas.) The subpoenas
do not require Trump himself to pro-
duce the records requested and do
not seek any records of his acts as pres-
ident. Trump nonetheless argues that
because he is president, he should be
able to block the accounting firm and
banks from responding, to avoid being
“distract[ed]” from the responsibilities
of his office.^1

Under our legal system, the state

generally “has a right to every man’s

evidence,”^2 which means that in the ab-

sence of a recognized privilege, such as

those protecting attorney– client com-

munications or shielding defendants

from compelled self- incrimination, we

are all obliged to respond to a subpoena

for documents or testimony. Grand

juries have authority to investigate

any conduct within their jurisdiction

in order to determine whether there

is “probable cause” that a crime may

have been committed. They may de-

mand any documents that might be rel-

evant to such inquiries. And the courts

have long recognized that Congress

has broad authority to investigate any

matter on which it could legislate and to

compel both the testimony of witnesses

and the handing over of documents—

whether from Facebook, a state police

department, or the executive branch.

Trump claims, however, that this au-

thority ought not to extend to investiga-

tions of the president. He contends that

he should be immune from all state

criminal investigations as long as he

remains in office. And he objects that

the congressional committees are im-

permissibly pursuing law enforcement

objectives, not legitimate inquiries to

inform legislation.

The lower courts have uniformly re-

jected the president’s arguments, but the

Supreme Court has agreed to hear his

appeals. (The ACLU, of which I am the

national legal director, has filed friend-

of-the-court briefs supporting enforce-

ment of the subpoenas.) The cases will

be argued on March 31, and the Court’s

decisions are likely to be among the

last it hands down in June, in the midst

of the 2020 presidential campaign. The

stakes could not be more important.

The grand jury case asks whether the

president has the same obligations

with respect to records of his personal

business as everyone else—in essence,

whether he is subject to or above the

law. And the congressional cases go to

the heart of our system of checks and

balances, as they ask whether Congress

can effectively exercise oversight over

potential presidential wrongdoing.

The Supreme Court has only twice

before addressed claims even remotely

like Trump’s, and both times the presi-

dent lost resoundingly. In United States

v. Nixon (1974), the Court ruled that

President Richard Nixon had to com-

ply with a subpoena for tape recordings

of confidential White House communi-

cations because they were relevant to

an ongoing criminal prosecution. It did

so even though the tapes revealed the

president’s official deliberations, and

therefore would generally be protected

from discovery by executive privilege.

The Court held that the specific inter-

est in getting to the truth in a criminal

trial outweighed the president’s general

claim of executive privilege.

In Clinton v. Jones (1997), the Court

rejected President Bill Clinton’s effort

to block temporarily a civil lawsuit filed

against him by Paula Jones for sexual

harassment he allegedly committed

while he was governor of Arkansas.

Clinton pointed to the absolute immu-

nity presidents have from lawsuits for

damages resulting from their official

acts, and argued that a more limited

temporal immunity ought to extend to

suits for their unofficial conduct. The

Court rejected that argument, ruling

that immunity is justified only for of-

ficial actions. It also rejected Clinton’s

argument that immunity was war-

ranted by the burden that responding

to litigation would impose on the presi-

dent’s official duties. The Court noted

that in the two-hundred-year history

of the nation, only three presidents

had been sued for damages for conduct

before they took office, so Clinton’s

concerns were historically unfounded.

Clinton ultimately had to submit to a

deposition in the case, in the course of

which he lied about his relations with

Monica Lewinsky, for which he was im-

peached, held in civil contempt, fined,

and had his law license suspended. But

like anyone else, he had to respond.

Significantly, the decisions in both

Nixon’s and Clinton’s cases were unan-

imous. Unanimity sends a particularly

important message in such high-stakes

controversies—it shows that the Court

has risen above partisan loyalties to

decide the dispute based on law. In

and the specific lines I can recall are
mostly wisecracks, although his wise-
cracks are pretty good. He places a
signature line in Basquiat’s dialogue in
Downtown 81 (ventriloquized by the
singer Saul Williams, since the original
soundtrack was lost), referring to the
art-world magus Henry Geldzahler as
“Henry Godzilla.” The real keepers in
this volume are precisely detailed and
often moving evocations of his friends:
Warhol, Basquiat, Nan Goldin, Rich-
ard Prince, James Nares. He conveys
them in ways that are strangely difficult
to quote, since they are contingent on

chatter, circumstance, anecdote, and

location, and evoke by accretion:

I remember Jean-Michel saying

Boom all the time. It was an excla-

mation point with right on built in.

Boom. Boom. Boom for real.

I remember the way he talked, soft

but really fast and forceful. Urgent

you might say. With Jean-Michel

everything was urgent.

I remember him painting a paint-

ing that was so great and then just

painting over it and that was so

great.

The book is handsome, although the

design can be distracting (I found my-

self inadvertently avoiding the pieces

set in sans-serif type), and there are

far too many typos for a professional

production, some of them substantive

(Lee Perry somehow appears as “Leo

Perry”). For people who did not know

O’Brien, it can only point in the gen-

eral direction of his physical presence,

which is much more of a consideration

than it would normally be for a writer:

his deadpan stare, his sotto voce, his

timing, his imperturbability, and of

course his sartorial magnificence. Read-

ers are advised to look up the listicle

published by GQ after his death, which

spotlights the jewels of his closet: his

double-breasted cream-colored shawl-

collared dinner jacket by Steed, of Sav-

ile Row; his battered John Lobb ghillies;

his hand-painted neckties and Charvet

shirts; and the crown jewel, the Per-

fecto jacket on which Basquiat painted

his trademark crown between the shoul-

der blades, a garment that should guar-

antee admission to heaven. Q

with the subpoena. For a complete list-

ing of these cases, see Samantha Fry,

“Trump Litigation Round Up,” Law-

fare, December 11, 2019.

(^2) United States v. Bryan, 339 U.S. 323,
331 (1950) (quoting 7 J. WIGMORE,
EVIDENCE § 2192 [McNaughton rev.
1961]).
(^1) Other cases in which Trump is attempt-
ing to block congressional requests for
information from the Mueller investi-
gation and for testimony from former
White House counsel Don McGahn II
are making their way through the courts
but have not yet reached the Supreme
Court. On February 28, the US Court
of Appeals for the D.C. Circuit ruled,
in a divided opinion, that it lacked ju-
risdiction to require McGahn to comply