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Prominent Republicans mock Trump’s legal claims in Supreme Court brief — and debunk president’s ‘absolute immunity’

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David Cay Johnston
David Cay Johnston

A Supreme Court filing lays bare the deep chasm between prominent Republicans who believe in the rule of law and wannabe president for life Donald Trump, who says he enjoys absolute immunity from any inquiry into his conduct.

Trump audaciously claims that any crimes he may have committed before assuming office cannot even be investigated, not even if he committed murder, in effect trying to extend the protections of bankruptcy law with which he is so familiar to criminal law. No statute, court decision or our Constitution supports this claim of being above the law.

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In a friend of the court brief filed Monday the prominent Republicans argue that Trump cannot block the Manhattan district attorney’s garden variety criminal tax fraud investigation. They note that the issue before the high court is a subpoena for business records held by Trump’s accounting firm, Mazars USA. The firm says it will comply with the subpoena, but Trump’s lawsuit blocked that.

Trump is a man without principles or scruples, and the Republicans are warning the court not to enable Trump or any future president who lacks respect for the rule of law.

Trump, the Republican brief states, “asks this Court to depart radically” from the principle that no one is above the law “by holding that criminal investigations may not touch the president’s affairs in any way, even when those investigations require nothing at all from the president. This extraordinary assertion is not based on any specific claim of privilege, but rather on a sweeping claim of absolute immunity. There is no principled reason to depart from the Court’s historical approach and create such a far-reaching, per se rule shielding all of the president’s unofficial affairs from criminal investigation.”

There, in a nutshell, is the issue: “principled reason.” Trump is a man without principles or scruples and the Republicans are warning the court not to enable Trump or any future president who lacks respect for the rule of law.

‘Absolute Immunity’ Debunked

The Republicans warn that “Trump’s assertions of absolute immunity from process while in office—and more generally, his arguments against accountability in any forum—could impose lasting damage on our constitutional system of checks and balances as well as on the rule of law.”

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Significantly, the grand jury investigation focuses on whether Trump cheated on his New York State taxes and falsified business records before he took office. No court has ever held that a president enjoys any immunities or privileges for conduct before his election.

The grand jury no doubt already has Trump’s state income tax returns dating to 2011 and federal tax return information that the IRS routinely shares with the state, all of which are available to it under New York State tax law.

Uncovering Tax Fraud

The real issue is grand jury access to the business records, and drafts of the tax returns before they were filed. They would be crucial in establishing whether Trump engaged in criminal tax fraud, which is a virtual certainty given evidence already in the record of the Trump family’s massive gift, estate and income tax frauds detailed by The New York Times in 2018.

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Trump has a well-documented record of lying in filings with governments to escape paying money he owed, such as his farcical efforts to hide records from the New York City auditor general in an attempt to evade almost $3 million a year in rent for the Grand Hyatt hotel when he ran it. That story is detailed in my 2016 Trump biography.

The Republicans cite an 1807 ruling by Chief Justice John Marshall compelling President Thomas Jefferson to comply with a subpoena in the Aaron Burr treason case. Jefferson did, establishing that no sitting president is immune from subpoenas for records.

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Reagan Invoked

The Republicans also cite Ronald Reagan, a smart move given GOP reverence for that former president.

The “genius of our constitutional system is its recognition that no one branch of government alone could be relied on to preserve our freedoms” and that “the great safeguard of our liberty is the totality of the constitutional system” that ensures that no branch of government gets “the upper hand,” Reagan said in 1987.

The 37 Republicans on the court brief include, former Senator David Durenberger of Minnesota, 19 former members of Congress and others who served in senior executive branch positions as far back as the Nixon era including John Dean, Nixon’s White House counsel and Charles Fried, Reagan’s solicitor general.

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Also signing the brief: Trump antagonist George Conway, aka Mr. Kellyanne Conway.

The brief points out that the Manhattan grand jury is investigating conduct before Trump took office. No court has held that any president enjoys privileges or immunities before his election and enjoys only extremely limited protections during the period between the vote and taking the oath of office.

Making Criminal Law Like Bankruptcy Law

Trump’s claim that once he became president no investigation of any kind is permitted into his conduct either in office or when he was a private citizen would effectively expand the core principle of bankruptcy law to criminal law, at least so far as a president is involved.

Federal bankruptcy allows individuals and businesses to wipe out debts they cannot repay and start afresh. A Trump casino company wiped away its debts six times, four of them when Trump was in charge.

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Now Trump claims that as president he can wipe out any debt to society for past criminal conduct. Actually, Trump’s claim goes far beyond that. Trump says that he cannot even be investigated.

Federal Judge Denny Chin said two months ago that he was skeptical of Trump’s claims of absolute immunity.  He asked about Trump’s campaign statement he could shoot someone on Fifth Avenue under the immunity claims made by Trump lawyer George Consovoy.

“Local authorities couldn’t investigate? They couldn’t do anything about it?… That is your position?”

“That is correct,” attorney Consovoy replied.

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Days later a federal appeals court held that was incorrect. Trump then appealed to the Supreme Court, two of whose members he appointed.

Supremacy Clause Abuse

The Republicans also challenge Trump’s claims that any sitting president is immune from state criminal proceedings under our Constitution’s supremacy clause. The Supremacy Clause “is concerned with the supremacy of federal law, not the supremacy of federal officials,” The Republican brief states.

“A subpoena for documents that concern the president’s personal affairs—rather than his official conduct—cannot possibly implicate the Supremacy Clause, because it does not impede federal law or the operations of the federal government in any way,” the Republicans argue.

“Occupying high office does not shield an individual from ordinary legal obligations; and that no person, regardless of rank or station, can wholly exempt himself and his affairs from the legal process,” they also argue.

In an almost mocking tone, the Republicans note that in the Trump criminal case “the subpoena was not even issued to the president, and it requires him to do literally nothing. Moreover, the subpoena seeks documents unrelated to and remote from the president’s official duties. Nothing in Article II bars a state from seeking such documents in the course of a legitimate criminal investigation, from a party who is not even the president.”

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Enter the Prince of Wales

To show how absurd Trump’s claim of absolute immunity from investigation is the Republicans cite Jeremy Bentham, the 18th and 19th Century British economist and legal reformer:

“Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor, to be passing by . . . while a chimney- sweeper and a barrow-woman were in dispute about a halfpennyworth of apples,” could they later refuse to testify about what they had seen?

“No, most certainly,” Bentham answered.

The Republican brief also argues that Trump wrongly conflates the Office of the President with his person. Without directly quoting Louis XIV, they attack the French Sun King’s reputed claim of  “l’état, c’est moi”—”I am the state.”

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A President Isn’t a King

Our Supreme Court has consistently rejected claims of kingly exemption from the law, notably in the civil lawsuit that Paula Jones brought against President Clinton in 1994, saying he hurt her career because she declined to have sex with him.

“The mere holding of high office cannot excuse an individual” from their duties under the law, the Supreme Court ruled.

The Supreme Court also distinguished between the President and the person holding that title. “Immunities for acts clearly within official capacity are grounded in the nature of the function performed, not the identity of the actor who performed it.”

The high court will hear oral argument on March 31 and is expected to rule in June. The Supreme Court case filings are available here.

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