April 9, 2020 23
both cases, moreover, the unanimity
was likely aided by the sharp tension
between the presidents’ claims to im-
munity and the promise of “equal jus-
tice under law”—words etched in stone
above the Supreme Court’s entrance.
Whether the Roberts Court can reach
similar consensus will be a particularly
important test of its newest members,
who owe their jobs to the man now
seeking their votes.
In Tr u m p v. Va nc e, the president
claims immunity from any state crimi-
nal process. But if Nixon and Clinton
were required to respond themselves,
why should Trump be able to block a
subpoena directed to someone else? If
anything, Trump’s claims are weaker
than those the Supreme Court unani-
mously rejected in Nixon’s and Clin-
ton’s cases. Unlike in Nixon’s case, the
subpoena seeks nothing related to his
official duties as president. And unlike
in Clinton’s case, Trump is not himself a
defendant. Moreover, denying relevant
evidence to a criminal investigation di-
rectly interferes with New York’s abil-
ity to enforce its criminal laws against
multiple individuals beyond Trump
whom the grand jury is investigating.
Trump points to Justice Department
memos maintaining that a sitting presi-
dent cannot be prosecuted. The memos
argue that prosecuting a sitting presi-
dent would impermissibly give a jury of
twelve randomly selected citizens the
power to effectively remove an elected
president from office. The Constitution
provides a different mechanism for re-
moving a president: impeachment, a
decision given not to a jury but to the
representatives of the people. That ar-
gument makes sense, as far as it goes.
But even if a president cannot be
prosecuted while in office, it does not
follow that he cannot be investigated,
much less that he can block requests for
his documents that may be relevant to
the investigations of the criminal con-
duct of others. Those who maintain that
a sitting president cannot be indicted
always note that he can be prosecuted
after he leaves office. Indeed, one of the
Justice Department memos on which
Trump relies expressly acknowledges
that although a grand jury could not
indict a sitting president, it “could con-
tinue to gather evidence throughout the
period of immunity.” And even if the
president cannot be prosecuted while
in office, any co- conspirators could be.
Noting that Nixon’s and Clinton’s
cases arose in federal courts, Trump
also argues that allowing state prosecu-
tors to demand documents relating to
the private affairs of presidents violates
the Constitution’s Supremacy Clause,
which holds that state laws cannot in-
terfere with federal laws. But nothing
in the Constitution says that federal of-
ficials cannot be held accountable for
state crimes they commit as private citi-
zens. Trump invokes the specter of state
prosecutors across the country issuing
subpoenas in connection with bad-
faith grand jury investigations. Clinton
made similar claims about a deluge of
civil lawsuits, but the Supreme Court
discounted them as conjectural in
light of the absence of any evidence of
such abuse. Trump says there are more
than 2,300 prosecutors nationwide, but
there are 325 million people in the US
who could bring a civil lawsuit against
a president, and that did not stop the
Court from allowing such a suit against
Clinton. Prosecutors can empanel
grand juries only to investigate indi-
viduals whom they believe have com-
mitted crimes within their jurisdiction,
and they take an oath to uphold the
Constitution, so there is far less reason
to worry about frivolous criminal inves-
tigations than vexatious civil lawsuits.
Thus far, Trump’s private documents
have been subpoenaed by only one state
prosecutor, in New York City, where
Trump and his businesses were located.
And among the crimes the grand jury is
investigating are the payoffs to Stormy
Daniels, for which Trump’s personal
attorney, Michael Cohen, has already
pleaded guilty, so this is no “witch
hunt.” Finally, to the extent that a grand
jury overreaches, the president can al-
ways seek federal court protection. But
to merit it, he must show a particular
burden, and cannot merely rest on
general speculation about unspecified
abuse in an unspecified future.The cases involving congressional
subpoenas are apt to worry Trump far
more than the grand jury case, for a
simple reason: grand jury proceedings
are secret, while congressional investi-
gations generally are not. With narrow
exceptions, the state cannot disclose
evidence obtained in connection with
a grand jury investigation. But the evi-
dence a congressional committee gath-
ers is routinely published in official
committee reports. So, if the grand jury
obtains Trump’s tax records, the public
may still never see them (unless they
are introduced in a subsequent crimi-
nal trial). If the congressional commit-
tees obtain the records, however, he
has no such assurance.
The president argues that the con-
gressional subpoenas are unenforceable
for two principal reasons: (1) the com-
mittees are pursuing law enforcement,
which is not a legitimate legislative func-
tion; and (2) the subpoenas do not serve
a valid legislative purpose, because any
legislation Congress might enact that
would impose disclosure or ethics rules
on the president would be unconstitu-
tional. Neither argument is persuasive.
Congress is not engaged in law en-
forcement but in legislative investiga-
tion and oversight. The Supreme Court
has long held that “the power of the
Congress to conduct investigations is
inherent in the legislative process.”^3
That power includes the right to in-
quire into past wrongdoing, as such
inquiries will inform Congress’s judg-
ment about whether the laws should be
reinforced or changed. Congress cannot
enforce the laws through prosecution;
that’s the executive’s task. If Congress
were using the legislative process to ob-
tain documents to hand over to a pros-
ecutor, Trump’s objection might stand,
but there is no evidence that it is doing
this. Rather, the committees have ex-
plained that they seek Trump’s finan-
cial records to guide decisions about
whether new laws governing financial
disclosure, conflicts of interest, and in-
telligence concerns regarding foreign
influence are needed. This is standard
oversight, the ordinary stuff of legis-
lative checks and balances. Trump ar-
gues that because the committees are
examining past wrongdoing, they must
be engaged in “law enforcement.” But
that is a non sequitur; evidence of pastwrongdoing often informs future re-
form. After Congress investigated the
Teapot Dome scandal in the 1920s, for
example, it enacted the Federal Cor-
rupt Practices Act. And after Congress
investigated Watergate, it enacted a
slew of good-governance reforms, in-
cluding the Ethics in Government Act.
In a variation on the president’s con-
tention, Judge Neomi Rao, a recent
Trump appointee to the US Court of
Appeals for the D.C. Circuit, main-
tained in dissent in Tr u m p v. Mazars
that the only way Congress can investi-
gate presidential wrongdoing is through
a formal impeachment inquiry, and
since the subpoenas were not issued as
part of the impeachment process, they
are invalid. Trump’s lawyers are barely
defending this novel theory before the
Supreme Court, devoting only a single
paragraph in their sixty-five-page brief
to it—and for good reason.
The Framers gave Congress two dis-
tinct ways to respond to wrongdoing
by the president: it can enact laws de-
signed to forestall similar conduct in
the future, or it can seek to remove him
from office. The second power does
not limit the first. As long as Congress
is considering remedial legislation,
there is no reason it should be barred
from conducting an investigation into
possible executive wrongdoing. Many
presidents have been subjected to such
congressional inquiries; only three
have been impeached.
Nor is there any basis for Trump’s
contention that the investigations are
impermissible because Congress could
not possibly enact any valid legislation
to address a president’s conflicts of
interest, financial disclosures, or com-
promising ties to foreign officials or
institutions. Courts block a legislative
inquiry only when Congress is “plainly
incompetent” to legislate on the sub-
ject, or when its inquiry is “irrelevant
to any lawful purpose.”^4 To rule for the
president on this ground, the Court
would have to imagine every possible
legislative response, and conclude that
they are all unconstitutional—with-
out having any specific law before it to
consider. What’s more, the argument is
plainly without merit. Presidents have
been subject to conflict- of-interest and
financial disclosure laws since Congress
passed the Ethics in Gover n ment Act in
1978, and Congress obviously has a le-
gitimate interest in knowing whether the
president is compromised by foreign ties.
There are good reasons to be vigi-
lant about the rights of those called to
testify or produce documents by grand
juries and congressional committees.
The McCarthy era demonstrated that
both institutions can be abused to tar-
get dissidents and chill constitutional
freedoms. But Trump makes no such
claims. His objections to both the grand
jury and congressional investigations
ask the Supreme Court to exempt the
president, even in his personal capacity,
from the laws that apply to the rest of us.
But the notion that neither a grand jury
nor a congressional committee can even
request records that may reveal private
illegal conduct by the president, simply
because he is the president, undermines
two of the most fundamental principles
of our constitutional system: that checks
and balances are absolutely essential,
and that no one is above the law. Q
—March 11, 2020(^3) Watkins v. United States, 354 US 178,
187 (1957).
(^4) McPhaul v. United States, 364 US 372,
381 (1960).
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