Justice Kagan Says 'President Isn't Above The Law' as Trump, New York Prosecutors Battle Over Tax Returns

Supreme Court Justice Elena Kagan said Tuesday it is a "fundamental precept of our constitutional order that a president isn't above the law" during arguments in a case pitting the Manhattan district attorney against Donald Trump in his quest to obtain the president's tax returns and other financial records.

Nevertheless, "presidents can't be treated just like an ordinary citizen," Kagan acknowledged during the oral arguments, which were conducted by phone because of precautions taken to avoid coronavirus transmission.

But she pressed the president's counsel, conservative lawyer and radio host Jay Sekulow, on why Trump should be provided unchecked immunity from state criminal investigations, which are believed to be underway with a Manhattan grand jury.

"We think [as] a categorical approach, and it's very specific here, state process as to targeting the president's documents in a criminal proceeding should be prohibited," Sekulow said.

In their questioning, several justices appeared skeptical of the idea that Trump should receive the kind of absolute immunity from investigation that Sekulow had proposed. But, in recognition of the unique constitutional protections given to the presidency, they did not agree upon a unified standard that would govern how these cases could proceed.

The case from Manhattan District Attorney Cy Vance is one of two the Supreme Court is considering involving the president's personal records. The other stems from a subpoena, issued by the House Oversight and Reform Committee, to Trump's accounting firm, seeking reams of financial documents. That case was argued earlier in the morning.

In a question to Carey Dunne, the general counsel for the Manhattan district attorney's office, Chief Justice John Roberts wondered why there shouldn't be "a higher standard" than applies to a congressional subpoena "before we permit the district attorneys from around the country" to begin seeking records from a sitting president.

Roberts has been viewed as a potential swing vote on a number of high-profile cases.

Dunne and opposing counsel disagreed on the finer points of how state prosecutors could meet this "higher standard" or what this standard should look like. But the suggestion that Roberts was entertaining such an analysis could end up being a blow to the president, whose lawyers favor the argument of absolute immunity.

Sekulow expressed concerns that a decision enabling state criminal proceedings against a sitting president "weaponizes" the thousands of locally elected district attorneys who could decide to pursue political grievances this way. It would allow any district attorney to "harass, distract and interfere with a sitting president," he said.

Dunne responded that "there's no historical support" for the argument that state prosecutors will persistently harass presidents if allowed to involve them in criminal proceedings.

"The supposed floodgates have been open for generations," Dunne said. "There's never been a flood."

Dunne added that unnecessarily delaying criminal proceedings involving presidential records during a term of office—or, as Sekulow put it, "temporary presidential immunity"—could lead to "permanent immunity" if statutes of limitations were allowed to expire.

Decisions in the cases are expected later this summer.

Donald Trump
President Donald Trump listens to questions during a press briefing about coronavirus testing on May 11. Drew Angerer/Getty