Tuesday’s oral argument before the Supreme Court concerning President Donald Trump’s financial records was filled with familiar talk about standards, tests, and burdens. But what came through most strongly was the work the President’s lawyers did in channeling their client’s grandiosity and paranoia and giving them legal form. In so doing, they highlighted the dangerous paradox of his presidency.
Their effort to persuade the Court that the President should be able to shield his tax and financial records made Trump out to be powerful and yet vulnerable. Specters of imagined disasters and vexatious political enemies, eager to harass and distract an already very distractible President, came to life as the lawyers answered hypotheticals and warned of slippery slopes.
First a word about power. In Trump v. Vance, Justice Ruth Bader Ginsburg questioned Jay Sekulow, the President’s lawyer, about whether Trump should be exempt from ordinary rules under which grand juries have a right to everyone’s evidence. Unfazed by the justice’s suggestions that the President was asserting a special prerogative, Sekulow observed that the President is indeed not an ordinary citizen.
And, as if stealing a sentiment from French King Louis XIV, famous for claiming that he and the state were one, Sekulow suggested that the President is a branch of government unto himself. Unlike the legislative and judicial branches with their multiple officeholders, the executive branch rests only on the person of the President who in turn is indistinguishable from the presidency.
When justices pushed further on whether the President was asking for a broader immunity from the standard legal processes for compelling testimony and obtaining evidence, Sekulow reiterated that the person is the office; the office is the person.
Justice Elena Kagan trotted out the now-familiar notion that the President is not above the law only to be met with yet another assertion of the President’s uniqueness.
However, history is not on Sekulow’s side of the argument: From Alexander Hamilton onward, even proponents of an energetic executive have rejected the identification of the person of the president with the office of the presidency, seeing in such an equation a dangerous step toward tyranny.
Indeed, Hamilton insisted that there was what he called a “total dissimilitude” between the American President and the British monarch in whom office and person were united. Hamilton thought that the President was more like an ordinary magistrate or maybe the governor of a state.
Recently courts have acknowledged the special nature of the presidency in cases dealing with executive privilege. But they have found repeatedly that the person who is President is not the same as the office of the presidency, which in turn creates limits around any notion of executive privilege.
That privilege attaches to the office, not the person who occupies it. Thus when President Bill Clinton invoked it to shield conversations with his advisors about his affair with Monica Lewinsky, a federal court ruled that those conversations had to be “related in some way to official decision-making” for the privilege to apply.
That court decided that what it called “purely private conversations that did not touch on any aspect of the President’s official duties or relate in some manner to presidential decision-making would not properly fall within the executive privilege.”
While the subpoena issued in the New York case pertained to Trump’s business dealings as a private citizen, Sekulow insisted that it did not matter. The distinction between private life and public duty was, he contended, simply irrelevant.
The President’s lawyers had a second reason why Donald Trump should not be compelled to provide the requested documents or otherwise comply with the subpoenas. They went to great lengths to portray him as besieged by potential enemies eager to harass and distract him.
Congressional committees would, if not stopped, issue baseless requests for testimony and documents, untethered to any legitimate legislative purpose. The President’s lawyers said that Congress must specify what that purpose is even before it has the necessary factual basis for deciding whether and what legislation is necessary.
The Court’s liberal justices, led by Justice Ginsburg, made little headway as they pointed out the Alice-in-Wonderland quality of this argument. The President’s lawyers gave no ground when asked whether legislatures had a right to investigate before they legislate.
Aided by Justice Brett Kavanaugh, who raised the specter of “limitless” investigative power loosed on the executive, the President’s representatives eagerly joined in saying that if the Court upheld subpoenas for the President’s tax and business records it would, borrowing an unfortunate hunting metaphor, be sanctioning “open season on government officials.”
Jeffrey B. Wall, a Justice Department lawyer who argued in support of President Trump, amplified this image of the president as particularly vulnerable. He said, “You can’t proceed against the President as you can against an ordinary litigant. The potential to harass and undermine the President and the presidency is profound.”
Even liberal Justice Stephen Breyer got into the act conjuring a “future Senator (Joseph) McCarthy” let loose on an unsuspecting President.
But, the paranoia of a President who always sees himself as a victim was most vividly channeled by the nimble Sekulow who repeatedly reminded the Court, in the mode of an overeager civics teacher, that there are 2,300 district attorneys in the United States. Each, he argued, has a political agenda and would like nothing more than to target the President and use the subpoena power to hamstring and bury him under an avalanche of document requests.
Carey R. Dunne, general counsel for New York County District Attorney Cyrus R. Vance Jr., tried to puncture these imaginings by reminding the Court of the reality that district attorneys have always had the power that Sekulow feared. Yet they have never behaved as the President’s lawyer predicted. As Dunne put it, the “floodgates” have long been open but “there’s never been a flood.”
Such facts hardly matter to a president energized by the prospect of combat with both real and imagined enemies.
Witnessing the spectacle of the President’s grandiose conception of his importance as well as his paranoia was worth the time spent listening to yesterday’s argument, yet it was nonetheless a frightening reminder of the current attack on, and fragility of, our constitutional scheme.
We can only hope that the Supreme Court sees through and beyond the grandiosity and paranoia of the President’s legal claims. The future of a government of limited powers and the rule of law hangs in the balance.