The Supreme Court Could Decide if the President Is Above the Law

Manhattan District Attorney Cy Vance is investigating whether Trump broke New York state law when he allegedly reimbursed Michael Cohen, his former lawyer and fixer, for hush money Cohen paid to women claiming sexual encounters with Trump just prior to the 2016 election. Cohen pled guilty to breaking campaign finance laws and testified that he did so at Trump’s direction.

As part of his investigation, Vance subpoenaed Trump’s tax returns from his accountant, Mazars USA. Trump sued to stop the release of those records and the case has been making its way through the courts. When it was argued before a federal appeals court, the president’s lawyers made a stunning argument.

During oral arguments last month, [Trump private attorney William S.] Consovoy told the court that the subpoena is a politically motivated “fishing expedition.” A sitting president, he said, cannot be investigated — or prosecuted — while in office, even for shooting someone on the streets of Manhattan.

His assertion of “temporary presidential immunity” came in response to a question about Trump’s own hypothetical from 2016, when he said as a candidate his political support was so strong that he could “stand in the middle of Fifth Avenue and shoot somebody” and not “lose any voters.”

It should come as no surprise that the federal appeals court rejected that argument in a ruling issued on Monday, paving the way for the release of Trump’s tax returns. Of course, the president’s lawyers want to appeal the case to the Supreme Court and Vance has agreed to delay the enforcement of the subpoena on the condition that the review occurs this term—or by June.

But there is one step that must be taken to get to that process. Four votes from Supreme Court Justices are needed for the court to take the case. As Harry Litman notes, “accepting it for review would send a strong signal that a majority is inclined to reverse the decision of the appeals court.”

In other words, if the Supreme Court decides to hear the case, it would be a sign that the high court is willing to consider the idea that a sitting president isn’t simply immune from prosecution, but from even being investigated. That is why Litman recommends that they reject the case, because it would simply validate Trump’s extreme view that the president is above the law.

If the justices let the decision of the appeals court stand, the president’s tax returns would be made public very shortly. Paul Waldman summarized the questions that might be answered.

Everyone, Republicans and Democrats alike, agrees that what the returns reveal will be scandalous. Tax avoidance? Definitely. Tax evasion? Probably. Partnerships with shady characters, even criminals? No one will be surprised.

If the justices agree to hear the case, all bets are off and the Supreme Court could be on the verge of one of the most monumental decisions in the court’s history. As the legislative branch becomes engaged in the question of whether to impeach the president and remove him from office, the judicial branch could be on track to rule whether he is above the law.

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Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60.