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Trump today is asking our Supreme Court to undo more than 200 years of precedent and declare that he is above the law

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David Cay Johnston
David Cay Johnston

Donald Trump today is asking our Supreme Court to declare that he is above the law, not our employee and agent as president, but instead our ruler.

His lawyers assert – literally – that if he murdered someone the police could not stop him and, indeed, could not even gather evidence so long as Trump was in office. And they say this applies to his entire life, including when he was a private citizen, until he leaves office.

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No court in America has ever held that a president enjoys any privileges prior to assuming office. Sitting presidents enjoy limited immunities and privileges while in office. In cases involving Presidents Richard Nixon and Bill Clinton the Supreme Court has held that presidents must comply with lawful subpoenas in both criminal and civil matters.

Three cases have been consolidated by our Supreme Court. All seek accounting, business and tax records dating to 2011.

A Manhattan state grand jury and two House committees want the documents to establish whether Trump the private citizen was a money launderer, serial tax cheat and relied on Russian criminals for financing via a notoriously corrupt German bank. An unasked but obvious corollary is whether as president Trump continues in such behaviors.

The court is meeting by telephone conference call. It will become of the first oral arguments before the court that Americans can listen to live. The audio to be available on C-SPAN and perhaps other television and radio channels.

The accounting papers and tax returns are primarily from when Trump was a private citizen.

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The subpoenas require nothing of Trump. The requests for documents were issued to Mazars USA, Trump’s personal and business accountants, and to Deutsche Bank and Capital One. The three businesses are not participating in the cases. All three have said that they will turn over the requested documents if the Supreme Court upholds the subpoenas.

Of particular interest is how Trump obtained more than $2 billion in loans from Deutsche Bank when no other bank would do business with him because of his boasts that he borrowed money knowing he was not going to pay it back and got away with it.

Deutsche Bank is known to have made loans to others when a third party made deposits to secure the loans. That is what investigators suspect took place with Trump’s loans.

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A key issue involving the German Bank, a notorious money launderer for Russian criminals, is whether the Trump loans were made because Russian government or criminal elements indirectly guaranteed those loans. A related issue is why Deutsche Bank compliance officers who spotted what appeared to be money laundering by Trump were told by bank higher ups to keep quiet.

Trump, while serving as president, enjoys as do all presidents some immunities and privileges. For example, the Justice Department – which reports to him — asserts that he cannot be indicted by a federal grand jury, much less prosecuted while in office.

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Many legal scholars disagree with that interpretation, most notably Lawrence Tribe of Harvard University law school. Tribe is widely regarded as the nation’s preeminent Constitutional scholar.

Our Supreme Court has held that a sitting president can be required to give testimony and produce documents in civil suits, as Bill Clinton learned when the supreme Court ruled on the 1994 sexual harassment lawsuit filed by Paula Jones. She contended Clinton, as governor of Arkansas, abused his office and assaulted her.  Clinton was later impeached, bot not convicted, for lying under oath about his sexual relationship with a White House intern. Monica Lewinsky. He was fined $850,000 in the Jones case and lost his Arkansas law license.

The high court also required President Richard Nixon in 1974 to comply with a subpoena for secret Oval Office audio tapes during Watergate. Nixon, who was re-elected in a 1972 landslide victory, resigned in disgrace shortly after the court decision, having lost the support of every single representative and senator once the truth about his criminal abuse of office became undeniable.

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Trump’s lawyers assert that he is beyond the reach of any subpoena whether by Congress or the grand jury convened by the Manhattan district attorney so long as he holds office. This matters in part because Trump has repeatedly said he wants to be president for life, showing his contempt for the 22nd Amendment limiting presidents to two terms.  When challenged on this, Trump claimed he was only joking.

But the argument made by one of his lawyers, George Consovoy, in one of the three cases now before the high court suggests a much more sinister attitude. Consovoy’s position buttresses arguments by me and others who knew Trump well and personally that his goal is to become the first American dictator.

Consovoy said in court that no one may investigate Trump, not state prosecutors and certainly not Congress.

Our Supreme Court has consistently held that Congress has a duty to oversee the executive branch, to investigate and has upheld its subpoenas with only one caveat – the purpose must have some connection to legislation or oversight and not be a political vendetta. Trump claims all three cases the Supreme Court takes up today are vendettas with no legitimacy.

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During December arguments in the Second Circuit Court of Appeals over the Manhattan grand jury subpoena, Federal Judge Denny Chin inquired about Consovoy’s argument that Trump is immune from investigation.

Chin then specifically asked about Trump’s campaign statement he could shoot someone on Fifth Avenue and not lose a vote. The judge asked if this was mere campaign rhetoric or a legal argument.

“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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Two weeks later the federal appeals court held that Consovoy’s position was baseless. It upheld the Manhattan grand jury subpoenas. Another Trump lawyer, Jay Sekulow, immediately announced an appeal to the Supreme Court.

In May 6, 1994, former Arkansas state employee Paula Jones filed a sexual harassment suit against U.S. President Bill Clinton and former Arkansas State Police Officer Danny Ferguson. She claimed that on May 8, 1991, Clinton, then Governor of Arkansas, propositioned her.

In the majority opinion by Justice John Paul Stevens, the Court ruled that separation of powers does not mandate that federal courts delay all private civil lawsuits against the President until the end of his term of office.[1]

The court ruled that they did not need to decide “whether a claim comparable to petitioner’s assertion of immunity might succeed in a state tribunal” (a state court), but noted that “If this case were being heard in a state forum, instead of advancing a separation-of-powers argument, petitioner would presumably rely on federalism and comity concerns”.[1]

The court also found that “our decision rejecting the immunity claim and allowing the case to proceed does not require us to confront the question whether a court may compel the attendance of the President at any specific time or place.”[1]

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In his concurring opinion, Breyer argued that presidential immunity would apply only if the President could show that a private civil lawsuit would somehow interfere with the President’s constitutionally assigned duties.

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