Executive privilege, separation of powers, special counsel, presidential power, executive power
In Trump v. Vance and Trump v. Mazars, the Supreme Court heard two expansive claims of presidential immunity from grand jury and Congressional subpoenas for the personal papers of the president. In both cases, the Court rejected the President’s claims. Despite winning both cases, the grand jury and Congress did not receive evidence relevant to potential misconduct by the President until after he left office—a remarkable feat for a President who did not win a single case or appeal in his effort to block either subpoena.
This Note argues for significant reforms in response to President Trump’s unprecedented success at stifling investigations into his conduct. Comparing Trump’s efforts to two predecessors who faced similar legal perils, Richard Nixon and Bill Clinton, sheds light on the radical nature of Trump’s approach. While Nixon and Clinton opposed investigations into their conduct in court, both advanced straightforward claims, sought to appear cooperative, and partially accommodated a number of requests for evidence. Contrarily, Trump’s public and private obstruction made federal Special Counsel investigators wary of examining his financial affairs. When other branches of government issued subpoenas for Trump’s financial documents based in part on the President’s constraint of the Special Counsel inquiry, he claimed absolute immunity and refused to comply. Trump advanced expansive legal claims accompanied by arguments with far broader implications than the relief he sought. He contorted to avoid applicable precedent and law unfavorable to his position. One federal judge was forced to remind the Trump Administration that the President is not a king. Still, Trump benefitted from his resistance and delayed transmission of evidence of potential misconduct until his term was over—something neither Nixon nor Clinton accomplished. Since Nixon, the Supreme Court has affirmed that federal, state and Congressional subpoenas to presidents are all constitutional. It is time to reform the branches of the federal government to reflect this constitutional reality and prevent future iterations of Trump building on his dangerous approach. Action is essential to ensure Trump’s successors understand a founding principle: the president is not a king.
Robert J. DeNault, Not A King: President Trump and the Case for Presidential Subpoena Reform, 16 Duke Journal of Constitutional Law & Public Policy Sidebar 146-186 (2021)