The Supreme Court, Donald Trump and the rule of law

The cases before the U.S. Supreme Court on subpoenas for President Donald Trump's financial records should be easily resolved based on the core precept of the rule of law: No one, not even the president, is above the law. On Dec. 13, the court granted review in three cases where lower courts upheld subpoenas. Trump is asserting a broad immunity from investigation and legal process. The Supreme Court should follow its precedents and rule against Trump.

The issue in Trump v. Vance is a state court grand jury subpoena for eight years of Trump's business and personal records in connection with an investigation of hush money that was paid during the 2016 to Stephanie Clifford, aka "Stormy Daniels," and Karen McDougal. Trump sued in federal court to keep his accounting firm, Mazars USA, from turning over the financial records. The federal district court ruled against him and the 2nd U.S. Circuit Court of Appeals affirmed.

Trump contends that as a sitting president he cannot be subject to a criminal investigation, especially in state courts. But no Supreme Court decision ever has recognized such broad immunity from investigation for a president. In Clinton v. Jones, in 1997, the Supreme Court unanimously ruled that a president has no immunity for acts that occurred prior to taking office. That case involved a civil suit by Paula Jones against President Bill Clinton for sexual harassment that allegedly occurred when he was the governor of Arkansas. Clinton argued that a president could not be sued in office, a contention which the Supreme Court emphatically rejected.

A Department of Justice opinion says that a sitting president cannot be indicted. But whether that is so remains an open constitutional question; no court ever has ruled on it. And it would be an enormous extension of that to say that a president cannot even be investigated, including for conduct that occurred prior to taking office.

A second case, Trump v. Mazars USA, involves a subpoena by the House Oversight and Reform Committee, which is investigating the hush money payments, Trump's financial involvement with Russian companies, and the accuracy of financial statements he made to obtain loans and reduce taxes. The federal district court ruled against Trump and the D.C. Circuit affirmed. The appellate court concluded that the "subpoena issued by the committee to Mazars is valid and enforceable."

The final case, Trump v. Deutsche Bank AG, involves subpoenas from the House Financial Services and Intelligence Committees that were directed at two financial institutions that did business with Trump, Deutsche Bank and Capital One. Once more Trump went to court to block the subpoenas, but lost in both the district court and the 2nd Circuit.

Ultimately, President Trump is claiming that he, and all with whom he does business, are immune from all subpoenas. But the Supreme Court unanimously rejected that proposition in United States v. Nixon in 1974. The Watergate special prosecutor subpoenaed tapes of White House conversations to use in the prosecution of those who had been involved in the Watergate cover-up. President Richard Nixon claimed that executive privilege protected these tapes from disclosure and that the courts could not enforce a subpoena against the president.

The court, in an opinion by Chief Justice Warren Burger, explicitly rejected these arguments and held that Nixon had to comply with the subpoenas. Nixon then produced the tapes and they clearly showed that he had engaged in obstruction of justice. Just days after the release of the tapes, Nixon resigned.

Although the context of the three cases now before the Supreme Court differ from Clinton v. Jones and United States v. Nixon, these precedents are very much on point. The cases establish that a sitting president is not above the law and must comply with subpoenas. There can be investigation and legal proceedings against a president for what he did before taking office. Courts and Congress must be able to investigate a president's alleged wrong-doing or checks and balances are non-existent.

My hope is that United State v. Nixon also will be a precedent in another way: The court ruled against President Nixon by an 8-0 vote, with three Nixon appointees -- Warren Burger, Harry Blackmun and Lewis Powell -- part of that decision. (A fourth Nixon appointee, William Rehnquist, recused himself because he had been assistant attorney general in the Nixon administration). Although there was a partisan divide over the Nixon impeachment, though not as great as it is with the pending Trump impeachment, the justices transcended that and sent a powerful message about the rule of law.

My fear is that the Supreme Court could split 5-4 along party lines and rule in favor of Trump. This would be a serious blow to the court appearing as other than another political body. In our hyper-partisan times, can the justices overcome that and just focus on the legal issues presented? If Chief Justice John Roberts cares greatly about the legitimacy of the court, as many have noted, there is no way he will allow that to happen. Nor does he need to. The legal principles in these pending cases are clear and the constitutional message must be that no one, not even the president, is above the law. 