Donald Trump brings his claim of absolute power to the supreme court

On Tuesday morning the supreme court will assemble via conference call to hear oral arguments in three cases involving President Donald Trump’s claimed right to keep his taxes and financial records secret. These are in fact this generation’s most important tests of the nature and limits of presidential prerogative.

One case arises out of the efforts of the Manhattan district attorney, Cyrus Vance, to obtain tax records and other financial information from the Trump Organization as part of a grand jury investigation. More particularly, it raises the question of whether the president can refuse to comply with Vance’s subpoena in order to shield those records.

The other two involve the question of whether a congressional committee has the legal power to subpoena Trump’s accountant and some of his lenders.

President Trump’s term in office has been marked by repeated refusals to comply with subpoenas, whether from law enforcement officials or from congressional oversight committees. He also used this strategy of defiance to frustrate Congress’s impeachment investigation.

His insistence that he does not have to follow the rule of law is perfectly in keeping with his assertion during the last Republican national convention, that “I alone” can fix America’s problems and with his outrageous belief, as he said later in the campaign, that “I could stand in the middle of Fifth Avenue and shoot somebody and I wouldn’t lose any voters.”

Trump has taken this inflated view of his importance into the Oval Office, recently claiming that he had total authority to supersede governors in dealing with the current pandemic and that the constitution’s article II, which defines the executive branch’s powers, means that he can “do whatever” he wants.

The president is supported by an attorney general who believes in the so-called “unitary executive” theory: the fate of the country, on this theory, depends on virtually unchecked presidential power.

On Tuesday, in the New York case, the president’s lawyer, Jay Sekulow who also represented Trump during the Senate impeachment trial, will make the breathtaking argument that the supreme court should recognize what he calls “temporary absolute immunity”. That he will be joined in this argument by Noel J Francisco, solicitor general of the United States, is further indication of the complicity of the attorney general, William Barr, in this effort to create an environment in which this president can behave with impunity.

In their view, article II and the supremacy clause, mean not only that the president cannot be indicted or put on trial for committing a crime, but also that he cannot be subject to any criminal investigation during his term in office.

In the other two cases, the president’s lawyers will contend that the constitution limits Congress’s authority to investigate the president.

And, as if these theories of presidential immunity were not extreme enough, Trump’s lawyers will try to persuade the court that the constitution immunizes not only the president himself but also the businesses that he owned before becoming president as well as people they hire to handle their financial affairs.

The president’s lawyers made these same claims before the federal district court for the southern district of New York and second circuit court of appeals, neither of which were persuaded of the wisdom and legality of these positions. Courts in the District of Columba also ruled against the president in his dispute with Congress.

All of those courts were unpersuaded because the applicable legal precedents do not line up in Trump’s favor. Two cases seem particularly relevant.

In 1974, a unanimous supreme court ruled that “executive privilege” (the right to withhold information from other branches of the government to protect confidential communications within the executive branch) could not be invoked to permit presidential non-compliance with a grand jury subpoena. President Richard Nixon, from whom Trump recently said that he had learned a lot, had to surrender documents and tapes pertaining to the possible criminal conduct of members of his staff during the Watergate affair.

Chief Justice Warren Burger, whom Nixon appointed to the court, spoke for all the justices when he said that “the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal trial would cut deeply into the guarantee of due process of law and gravely impair the basic function of the court.”

Twenty-three years later, in 1997, the supreme court returned to the question of the scope of presidential immunity. In Clinton v Jones it again decided unanimously that a president, this time Bill Clinton, could be forced to testify in a civil case during his term in office.

Because of the strengths of these precedents, some commentators confidently predict that the court will rule against President Trump.

But a lot has happened in the supreme court since the United States v Nixon and Clinton v Jones decisions. The court has experienced both a deepening of partisanship and an emboldening of its conservative majority. Moreover, in several areas, the John Roberts court has been eager to defer to presidential power.

In the face of these developments, the chief justice has tried to convince observers of his investment in and concern about the court’s institutional legitimacy. Thus he memorably spoke out when President Trump impugned the integrity of a ninth circuit court of appeals judge calling him an “Obama judge”.

Roberts responded by insisting that “We do not have Obama judges or Trump judges, Bush judges or Clinton judges … [only] dedicated judges doing their level best to do equal right to those appearing before them.”

The outcome of the cases argued on Tuesday hinges on the chief justice’s willingness to make good on those words when the stakes for the future of America’s constitutional design are high. It will also depend on his skill in marshaling the court to join him.

The stakes in the cases are heightened by the failed effort to impeach the president and remove him from office. Having survived that effort to hold him accountable for obstruction of Congress and abuse of power, Trump is all the more emboldened in 2020. If he were to prevail in the current cases, little would be left of America’s vaunted system of checks and balances. The country would inch closer to the fulfillment of Trump’s authoritarian designs.

The president has worked hard to appoint to the supreme court justices and to other federal courts Trump-friendly judges, believing that they would provide legal cover for his often corrupt arrogation and abuse of power. Tuesday will provide an important glimpse into the justices’ thinking and a chance to see whether they will muster the wisdom, courage and commitment to prove him wrong, and to defend the rule of law.