President Donald Trump filed a petition with the Supreme Court on Thursday asking to keep his tax returns and financial information out of the hands of Manhattan District Attorney Cyrus Vance. Attorney Robert Anello, writing for Forbes Insider, previously described Trump’s efforts to quash that subpoena as “a tortured version of the rule of law.” That’s an incisive understanding of Trump’s legal argument but it almost undersells the extreme nature of Trump’s legal arguments in the 179-page petition.
While eschewing legal norms and history, Trump’s filing is an argument for the Supreme Court to crown a king. This analysis concerns the constitutional argument in the filing focused on the Supremacy Clause.
“The constitutional prohibition on subjecting a sitting President to criminal process is especially strong when applied to state and local governments,” Trump attorneys William Consovoy and Jay Sekulow argue, citing the Supreme Court case stylized as Clinton v. Jones.
This is a transparent attempt to misrepresent what the high court said in that landmark decision. Here is the sole reference, in full, to the Supremacy Clause in Clinton v. Jones:
Because the Supremacy Clause makes federal law “the supreme Law of the Land,” Art. VI, cl. 2, any direct control by a state court over the President, who has principal responsibility to ensure that those laws are “faithfully executed,” Art. II, § 3, may implicate concerns that are quite different from the interbranch separation-of-powers questions addressed here. Cf., e. g., Hancock v. Train, 426 U. S. 167, 178-179 (1976); Mayo v. United States, 319 U. S. 441, 445 (1943). See L. Tribe, American Constitutional Law 513 (2d ed. 1988) (“[A]bsent explicit congressional consent no state may command federal officials … to take action in derogation of their … federal responsibilities”).
Standing on its own, the above reference to the Supremacy Clause is somewhat vague–but the Supreme Court’s chosen verbiage in the last parenthetical explains exactly what the justices meant. The issue the court presaged–but did not actually analyze–in Clinton v. Jones was a situation in which a state sought to command federal officials in a way that detracted from their federal power and responsibilities.
The conservative Heritage Foundation offers an apt explanation of what the Supremacy Clause actually entails:
Any federal system needs a strategy for dealing with potential conflicts between the national and local governments…Third, both governments could be allowed to act without mutual interference, but one government’s acts could be given primacy over the other’s acts in the event of actual conflict.
The Supremacy Clause embodies the third strategy. It is a conflict-of-laws rule specifying that certain national acts take priority over any state acts that conflict with national law.
And here’s how the liberal American Constitution Society understands the the basic and time-honored concept:
A federal government hostile to state and local progressive policies has its own powerful tool in the Supremacy Clause. Federal preemption—the idea that federal law displaces state law when the two conflict—is rooted in Article VI of the U.S. Constitution, which states, “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.”
Relying on the Supremacy Clause, the Supreme Court has noted that “any state law, however clearly within a State’s acknowledged power, which interferes with or is contrary to federal law, must yield.” Therefore, “state laws that ‘interfere with, or are contrary to the laws of Congress, made in pursuance of the constitution’ are invalid.”
In short, the Supremacy Clause is concerned with power struggles between state/local laws and federal laws.
Here, there isn’t a state law Trump is attempting to claim the federal government has precedence over. There’s also not a congressional law that occupies the field here. The president’s use of the Supremacy Clause for this proposition relies entirely upon one 1967 Civil Rights case from the 5th Circuit which is mangled beyond all recognition.
In that case, local officials in Alabama concocted charges against Civil Rights leaders and later tried to use those charges to bring a grand jury against Justice Department attorneys in what was basically an effort to impede the enforcement of the Civil Rights Act.
The 5th Circuit invoked the Supremacy clause on narrow grounds–noting that Alabama used “the pretext of preserving law and order [and used] local laws, valid on their face, to harass and punish citizens for the exercise of their federally protected statutory rights.”
Nothing like that is what’s happening with Trump’s tax returns.
University of Texas Law Professor Steve Vladeck explained in a Friday post at SCOTUSBlog:
Vance served a subpoena on Mazars in late August 2019 for “a wide variety of financial records dating from January 1, 2011 to the present and relating to the President, the Trump Organization, and several related entities.” That includes any “[t]ax returns and related schedules, in draft, as-filed, and amended form” within Mazars’ possession.
On September 19, Trump filed suit in federal district court in New York seeking to bar Mazars from complying with the subpoena.
In short, as observed by 2nd Circuit Chief Judge Robert Katzmann: “The subpoena at issue is directed not to the President, but to his accountants; compliance does not require the President to do anything at all.”
Beyond specious legal reasoning, Trump’s argument for absolute presidential immunity represents a drastic lurch away from small-r republican governance. In no uncertain terms, Trump has endorsed the idea that the president is completely above the law.
“There is no basis for framing a narrower immunity inquiry here,” the petition reads. “The question, therefore, is not whether this criminal subpoena will burden or distract the President. It is whether allowing every state or local prosecutor to target the President for criminal investigation via the issuance of compulsory process would cross the constitutional barrier erected by Article II and the Supremacy Clause. It clearly would.”
In other words, though two lower courts have attempted to keep the controversy here narrow, Trump wants to blow entire constitutional frameworks apart in the broadest way possible. Again: the president’s attorneys are not arguing the law which authorizes Vance to issues subpoenas is invalid. No attorney would try argue that.
Trump is arguing something much different; that the Supremacy Clause has a more literal meaning: the President is Supreme.
Trump’s attorneys have created a semi-novel understanding of constitutional law in an effort to convince the world they’re quite a bit more clever than is possible for terminal D.C. attorneys bent on expanding the imperial presidency into an actual imperial power.
To be clear: this is not a prediction the conservative majority on the Supreme Court will take action one way or another. Two of the Supreme Court’s Justices are newly-minted and have Trump to thank for their life tenure. They may repay him duly.
But this is a deeply embarrassing filing for the attorneys who authored and assigned their names to the arguments therein. Those arguments, if accepted, would also be deeply embarrassing for the Supreme Court and its quickly-fading legitimacy–not based on the facts alone, but on the legal precedents at stake.
All this is likely to fall on the deaf ears of liberals and conservatives who have long argued for an imperial presidency. This is the end logic of those arguments from Bill Clinton‘s defenders on forward. Their mouths are so used to being fastened to the appendage of power they’ve forgotten how to breathe the air of a free republic.
[image via Olivier Douliery-Pool/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.