Two weeks ago Donald Trump’s private attorneys asked the U.S. Supreme Court to quash two subpoenas, one from the New York District Attorney, on behalf of a grand jury, and the other on behalf of the Oversight Committee of the House of Representatives. Both requests rely on Mr. Trump’s status as President, although both subpoenas ask only for Mr. Trump’s tax returns filed as a private citizen. Both requests should be denied for somewhat similar and somewhat different reasons.
The grand jury subpoena demands that Mr. Trump’s tax preparers turn over his tax returns, as well as supporting papers, because candidate Trump made very substantial payments in the final days of the 2016 Presidential election to two women with whom he is alleged to have extra-marital affairs. If those payments were taken as deductions on his personal tax returns, or those of the Trump Organization, that would be a criminal violation by Mr. Trump and possibly others of the New York tax code. The subpoena is being resisted based on an immunity claim that is unprecedented and would, if accepted, seriously set back all efforts to enforce the law against a sitting President and others who may have participated in any unlawful activity with him. In rejecting this claim, the Second Circuit accepted the argument that a sitting President cannot be indicted, but ruled that nothing prevented law enforcement agencies from investigating whether a person who is the President may have committed a crime, even if he cannot be indicted at this time. And it noted that responding to the subpoena would involve only his accountants producing existing records, but no action on Mr. Trump’s part.
No court has ever accepted this exemption from investigation claim, and none should. First, if the claim were correct, it would have precluded the special prosecutor from investigating President Nixon’s role in the Watergate break-in and cover-up, which would, as a practical matter, have meant that the evidence, which was gathered by the grand jury and the prosecutor, and which led to his resignation in lieu of impeachment, would never have surfaced. Moreover, because President Nixon did not act alone, but was part of a broader conspiracy, any part of the investigation that touched on his role, would be precluded as well. Furthermore, while this case involves a grand jury subpoena, the principle espoused would seem to preclude sending an investigator talk to witnesses, such as Trump lawyer Michael Cohen or the women who were paid not to talk about their relation with candidate Trump. Indeed, the entire investigation by Robert Mueller would have had to be stopped if any part of it touched on the actions of Mr. Trump as candidate or President.
The President does have two reasonable good points: if the focus of the DA’s concern relates to payments made in 2016, why does he need, at least initially, all the returns going back to 2011? Nothing in a denial of Supreme Court review would preclude a court from insisting that the subpoena be narrowed, while still allowing the 2016 investigation to go forward. And if Mr. Trump’s real concern is to assure that he can seek a court ruling before an indictment is issued, a court can and should impose a prior notice provision on the DA as a condition of enforcing the subpoena.