Trump Says a Sitting President Can't Be Investigated. Will the Supreme Court Tell Him He's Wrong? | Opinion

The rules of federal governance are being dramatically reconceived under the presidency of Donald Trump. The president's traditional relationship with federal agencies, with Congress and with state governments are all being called into question. At no time, however, in the past three and a half years has the radical nature of the "Constitution according to Trump" been more apparent than on Tuesday, when the Supreme Court heard oral arguments in two cases addressing whether the Constitution permits either Congress or a state district attorney to subpoena the president's tax returns from his accountants, Mazars.

Trump's lawyers, of course, say no—a president's personal financial records cannot be subpoenaed, because a sitting president cannot be investigated, not by Congress and not by a state district attorney.

The nub of the president's argument is that Article II of the Constitution gives him "temporary absolute immunity" until he leaves office. Worse, Trump thinks it extends immunity to anyone who holds his private records, even third parties who did not take part in the potential wrongdoing under investigation. His argument is that Article II temporarily places a sitting president personally beyond the reach of ordinary judicial processes, whether civil or criminal, and that it does this in order to protect the president's ability to govern without harassment.

Trump is asking the Supreme Court to bless this monarchical legal doctrine, despite the fact that the Supreme Court had previously told two prior presidents—Clinton and Nixon—that they lacked the same absolute immunity. And those presidents' circumstances were more favorable to the claim than is the case with Trump.

For any judge or justice who believes that interpretation of the Constitution, we've got a bridge in Brooklyn, or perhaps some Atlantic City casino bonds, we'd like to sell you.

It is critical to understand what is at issue here. Let's suppose for a moment that the justices end up agreeing with Trump. How would that impact our system of government?

First, as the president's lawyers argued in the U.S. Court of Appeals for the 2nd Circuit in Trump v. Vance, the thesis that a sitting president cannot be investigated would mean that Trump could literally shoot someone on Fifth Avenue, and police and federal investigators would be powerless to do anything about it.

That is not just a metaphor. As the president's lawyers made clear in their arguments in the 2nd Circuit, the theory of "temporary absolute immunity" means that for the four or eight years Trump is president, ordinary law enforcement measures against him would be entirely suspended. There could be 50 witnesses to the shooting, and not only would the police be barred from arresting or even stopping the president from his murderous spree. They could not even call the eyewitnesses in for questioning, as the president would have the right to block any such subpoena and insist that the witness not appear. According to Jay Sekulow, one of the president's lawyers, even requiring witnesses to testify would constitute "presidential harassment" that would interfere with the ability of Trump to do his job.

What would it mean for the Supreme Court to side with Trump in the case of congressional subpoenas? Congress would effectively lose the ability to investigate the president. They could try to investigate him, but since they could not subpoena him or any of his financial records, even from third parties, such an investigation would be futile. This is the same theory, by the way, that White House lawyers used in the D.C. Circuit to argue that former White House Counsel Don McGahn could not be forced to testify before the House Judiciary Committee in response to its subpoena issued during the impeachment proceedings. Consider how differently those proceedings might have gone had the president not obstructed his testimony.

What could a president who has been told he has absolute immunity do? Like Socrates' parable of the ring of Gyges that makes a person invisible, a president with absolute immunity could violate any law and not face the music until after he leaves office. That would give him an incentive to use every means possible to hang on to power.

A president in this position could, for example, ask foreign governments to help him get re-elected. He could attempt to suppress the votes of segments of the population that might vote against him. He might even then use his power as head of the executive branch to punish and intimidate whistleblowers and protect those who collude in hiding his misdeeds. If Congress then tries to investigate him for those actions, he could block their subpoenas and use his extensive absolute immunity to block others from telling Congress the truth as well.

Donald Trump
President Donald Trump speaks to reporters on his way to Marine One on the South Lawn of the White House on May 14 in Washington, D.C. Drew Angerer/Getty

But then, come to think of it, isn't this exactly what Trump is already doing? Indeed, there could be worse to come: If the Supreme Court agrees that he has absolute immunity while in office, he might use their very acquiescence to defy the orders of that court or other federal courts in cases that don't go his way.

What is critical to understand is that the ability to investigate a sitting president, whether by the states, by Congress or ultimately by a special counsel, is essential to our ability to ensure that the rest of our system of government works as the framers designed. It helps to protect the integrity of our elections and enables impeachment to function as the check on the executive branch it was intended to be. No one perceives this better than Donald Trump and his lawyers. Let us hope a majority of Supreme Court justices perceives it as well.

Claire Finkelstein is the Algernon Biddle Professor of Law and Professor of Philosophy and the Faculty Director of the Center for Ethics and the Rule of Law at the University of Pennsylvania.

Richard W. Painter is the S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School and was the chief White House ethics lawyer under President George W. Bush.

The views expressed in this article are the writers' own.