No Court Has Ever Ruled That a President May Claim Immunity From Investigation
Without getting into arcane discussions of federalism, the larger point is that the substance of Mr. Trump's argument is awe-inspiring in its threat to our institutions. This issue is not about this particular president; rather it is about the rule of law.
September 24, 2019 at 09:31 PM
6 minute read
Donald Trump has filed suit asking a federal judge to issue an injunction barring the New York County grand jury from gathering evidence as to whether he—and his accomplices—committed crimes in Manhattan. Although the United States Supreme Court has previously ruled that federal courts should not intervene in state criminal proceedings, Mr. Trump ignores clear law that goes to the essence of our federal structure under the Constitution.
Without getting into arcane discussions of federalism, the larger point is that the substance of Mr. Trump's argument is awe-inspiring in its threat to our institutions. This issue is not about this particular president; rather it is about the rule of law.
Mr. Trump's argument is that he may not be prosecuted–or even investigated–while he is president, for any crime whatever. In late January 2016, then-candidate Mr. Trump famously bragged that he could shoot someone on Fifth Avenue and not lose any support. Applying Mr. Trump's current legal argument to his prior braggadocio, he would make it unlawful for New York not just to prosecute him but even to gather evidence relating to his supposed Fifth Avenue shooting.
First, it should be noted that the Constitution says nothing about presidential immunities under the law, state or federal. No court has ever ruled that a president may claim immunity from investigation and there are strong legal arguments against this view. For example, the Constitution gives certain limited immunity to members of Congress, but not to the president.
As the late Justice Antonin Scalia has urged, "The text is the law, and it is the text that must be observed." The text–the Constitution–provides no immunity to the president. Had the framers wanted to extend immunity to the president, they could have. But they did not.
Moreover, the lawsuit by Mr. Trump in federal court challenging a state grand jury investigation flies in the face of our federal system of governance, which reserves the state police power to the states themselves, free of interference by the federal judiciary.
The Supreme Court addressed this issue in 1971 in Younger v. Harris where, in a different context, the court held that federal courts may not intervene in state court criminal proceedings absent extraordinary circumstances, such as bad faith by the prosecutor, harassment or similar circumstances. As the court noted in Younger, the policy of permitting state courts to prosecute state cases free from interference by the federal courts is embedded in our policies "[s]ince the beginning of this country's history."
In addition, whatever the merits of the contention that a sitting president should not have to face criminal trials during his or her term of office, that has nothing to do with whether a grand jury may collect evidence as to whether crimes were committed, and if so, by whom. Mr. Trump's application to the federal court is to bar entirely the collection of evidence by a separate state sovereign–including against any possible accomplices and co-conspirators and the business entities with which and through such crimes may have been committed. A fair reading of Mr. Trump's court papers suggests that the people he seeks to protect are his long-time business associates and children and that the businesses are companies he owns.
Thus, not only does Trump claim immunity for himself, he seeks to extend that cone of immunity to his accomplices (including family members) by asserting that his own immunity from prosecution means that evidence cannot be gathered against him or potential co-conspirators while he is president. He claims that "the subpoena targets the president's businesses," and thus "violates the Constitution," and that the subpoena cannot be enforced until after he leaves office.
Of course, at that time he would be protected by statutes of limitation, which would bar prosecution of anyone for most crimes more than five years old. In this fashion, Mr. Trump attempts to put his affairs above the law and beyond its reach.
The claim that a subpoena seeking evidence is invalid because it seeks evidence against a corporation in which the president has an economic interest is unprecedented and without support in the law. Corporations, which are separate legal entities, cannot be immune from prosecution merely because they are owned by a sitting president. Individuals cannot be immune from prosecution merely because they engaged in business with or are related to a sitting president.
It is clear that Mr. Trump can expect a fair and decent evaluation of the evidence by the current district attorney; that may be what he fears. It has been widely reported that when the district attorney's office previously investigated Mr. Trump, his family and associates, District Attorney Vance decided that the case did not warrant prosecution, and no one was prosecuted.
Thus, Mr. Trump cannot reasonably claim that he is being subject to "harassment" or "bad faith," as required by the Supreme Court's clear precedent. Mr. Trump knows the facts here very well, so his continuous efforts to keep evidence from the jury must reflect a well-grounded fear based on his own knowledge that the evidence, this time, would inevitably lead to criminal charges.
His efforts to stymie the investigation are based on no law whatever, merely his will that he, his accomplices, family and businesses are not bound by the laws governing the behavior of others. That is how a despot thinks. Mr. Trump should not be allowed to run out the clock with arguments that should be laughed out of court—and quickly.
Nor should he be allowed to bypass New York State Court, which has jurisdiction, with an illegal end-run to federal court in the illusory hope that a politically appointed judge will disregard the law in favor of political loyalty. For the sake of the Constitution and our system of governance, Mr. Trump's lawsuit should be summarily dismissed.
John Moscow is senior counsel at Lewis Baach Kaufmann Middlemiss and Adam Kaufmann is a partner. Both were formerly with the New York City District Attorney's Office.
|This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
NOT FOR REPRINT
© 2024 ALM Global, LLC, All Rights Reserved. Request academic re-use from www.copyright.com. All other uses, submit a request to [email protected]. For more information visit Asset & Logo Licensing.
You Might Like
View AllTrending Stories
- 1Trump's Return to the White House: The Legal Industry Reacts
- 2Climate Disputes, International Arbitration, and State Court Limitations for Global Issues
- 3Judicial Face-Off: Navigating the Ethical and Efficient Use of AI in Legal Practice [CLE Pending]
- 4The Law Firm Disrupted: Big Law Profits Vs. Political Values
- 5Infant Formula Judge Sanctions Kirkland's Jim Hurst: 'Overtly Crossed the Lines'
Who Got The Work
Michael G. Bongiorno, Andrew Scott Dulberg and Elizabeth E. Driscoll from Wilmer Cutler Pickering Hale and Dorr have stepped in to represent Symbotic Inc., an A.I.-enabled technology platform that focuses on increasing supply chain efficiency, and other defendants in a pending shareholder derivative lawsuit. The case, filed Oct. 2 in Massachusetts District Court by the Brown Law Firm on behalf of Stephen Austen, accuses certain officers and directors of misleading investors in regard to Symbotic's potential for margin growth by failing to disclose that the company was not equipped to timely deploy its systems or manage expenses through project delays. The case, assigned to U.S. District Judge Nathaniel M. Gorton, is 1:24-cv-12522, Austen v. Cohen et al.
Who Got The Work
Edmund Polubinski and Marie Killmond of Davis Polk & Wardwell have entered appearances for data platform software development company MongoDB and other defendants in a pending shareholder derivative lawsuit. The action, filed Oct. 7 in New York Southern District Court by the Brown Law Firm, accuses the company's directors and/or officers of falsely expressing confidence in the company’s restructuring of its sales incentive plan and downplaying the severity of decreases in its upfront commitments. The case is 1:24-cv-07594, Roy v. Ittycheria et al.
Who Got The Work
Amy O. Bruchs and Kurt F. Ellison of Michael Best & Friedrich have entered appearances for Epic Systems Corp. in a pending employment discrimination lawsuit. The suit was filed Sept. 7 in Wisconsin Western District Court by Levine Eisberner LLC and Siri & Glimstad on behalf of a project manager who claims that he was wrongfully terminated after applying for a religious exemption to the defendant's COVID-19 vaccine mandate. The case, assigned to U.S. Magistrate Judge Anita Marie Boor, is 3:24-cv-00630, Secker, Nathan v. Epic Systems Corporation.
Who Got The Work
David X. Sullivan, Thomas J. Finn and Gregory A. Hall from McCarter & English have entered appearances for Sunrun Installation Services in a pending civil rights lawsuit. The complaint was filed Sept. 4 in Connecticut District Court by attorney Robert M. Berke on behalf of former employee George Edward Steins, who was arrested and charged with employing an unregistered home improvement salesperson. The complaint alleges that had Sunrun informed the Connecticut Department of Consumer Protection that the plaintiff's employment had ended in 2017 and that he no longer held Sunrun's home improvement contractor license, he would not have been hit with charges, which were dismissed in May 2024. The case, assigned to U.S. District Judge Jeffrey A. Meyer, is 3:24-cv-01423, Steins v. Sunrun, Inc. et al.
Who Got The Work
Greenberg Traurig shareholder Joshua L. Raskin has entered an appearance for boohoo.com UK Ltd. in a pending patent infringement lawsuit. The suit, filed Sept. 3 in Texas Eastern District Court by Rozier Hardt McDonough on behalf of Alto Dynamics, asserts five patents related to an online shopping platform. The case, assigned to U.S. District Judge Rodney Gilstrap, is 2:24-cv-00719, Alto Dynamics, LLC v. boohoo.com UK Limited.
Featured Firms
Law Offices of Gary Martin Hays & Associates, P.C.
(470) 294-1674
Law Offices of Mark E. Salomone
(857) 444-6468
Smith & Hassler
(713) 739-1250