The President’s Lawyers Are Making a Dangerous Argument for Presidential Immunity

But it’s different from the argument everyone thinks they’re making.

Trump sits in the Oval Office in front of a portrait of George Washington.
Alexander Drago / Reuters

For those following along on many major news sites on Wednesday, President Donald Trump’s lawyer William Consovoy apparently told federal judges that if a president shot people on Fifth Avenue, not only could he not be indicted, but he could not even be investigated.

This was not, in fact, what happened: Consovoy immediately apologized for creating this impression for the judges, clarifying that state officials might investigate, but could not subpoena, a sitting president. Consovoy was raising a valid concern about a “proliferation” of partisan state prosecutions burdening a president. While his argument for total immunity from state process went too far, he was making an important argument for federal jurisdiction to review state subpoenas of a president, which should be sufficient to prevent abuses.

But it was earlier in Consovoy’s answers—overlooked by the media and the judges themselves—that his arguments backed into a more practical and immediate danger.

The case now before the Second Circuit Court concerns a subpoena from Manhattan District Attorney Cyrus Vance of Trump’s tax returns from his accountant. A federal trial court decided earlier this month to abstain from jurisdiction in the case, meaning it would be left to the New York state courts, and rejected Trump’s lawyers’ argument that the president ought to have immunity from state investigation. On Wednesday, Consovoy asked the Second Circuit judges to reverse that earlier decision on jurisdiction, and to categorically deny all state “criminal process” (such as subpoenas) leveled against the president.

Consovoy’s argument on immunity was extreme—extreme enough to overshadow his strong argument for federal jurisdiction, but not as extreme as many reported. Consovoy did not actually argue that the president can never be investigated by anyone. First, his argument was specific to state investigations. He focused repeatedly on the problem of state “proliferation” and local politics, and explicitly left the door open several times for federal investigation, saying “it’s a harder case” to argue immunity from federal investigation. (He also left the door open to argue immunity against federal investigation, but he was careful not to push this argument.)

Second, he clarified that even if states could not use “criminal process” and subpoena a president or his “custodians” for answers or documents, they could otherwise investigate. The source of the confusion is that many media outlets and commentators have taken one exchange out of context. Toward the very end of the argument, Judge Denny Chin asked about the Fifth Avenue shooting hypothetical: “Local authorities couldn’t investigate? They couldn’t do anything about it … while [the president was] in office?” Consovoy answered, “That is correct.”

But then Judge Robert Katzmann immediately jumped in for clarification: “So even gathering documents that could be used later once the president leaves office? That can’t be done either?” Consovoy quickly reversed: “That can be done. I apologize … This grand jury is proceeding. We have not sought to enjoin the entirety of the grand jury … We are simply saying: Criminal process [a subpoena] issued to a sitting president who has not been ruled out that he is a target of the investigation falls comfortably with the immunity that has to be accepted.” Consovoy is clearly saying state prosecutors can investigate a president and ask questions, but they cannot issue him a subpoena, and presumably, state officials could not arrest or detain him (even for a shooting).

Consovoy is right to be concerned about states’ abuse of investigatory powers. Judge Chin asked about this specifically: “You’re concerned that [state prosecutors] are going to act in bad faith?” Consovoy replied with an important point: “I think there is an incentive [to act in bad faith] …”

This brings us to my surprise when I realized that Consovoy and his lawyers quoted a blog post I had written on this question in their brief, on page 7: “All you need is one prosecutor, one trial judge, the barest amount of probable cause, and a supportive local constituency, and you can shut down a presidency.” Trump’s lawyers actually cut off the end of that sentence without providing the required ellipsis. My sentence ended, “You can shut down a presidency with a criminal trial or two or two dozen.” They misleadingly left out my distinction between indictment and trial. But even so, I was wrong 18 months ago when I also suggested a sitting president “generally” could not be indicted absent a clear and present danger. It seemed like the Department of Justice was functioning under pressure. I was naive. A year ago, I retracted after more research on statutes of limitations.

Nevertheless, a lot of evidence backs him up on this: Almost all state prosecutors are elected, and they are partisan players, often seeking publicity in a bid to run for higher office. To give them the unchecked power to subpoena a president would be an invitation for the most ambitious partisans in the reddest or bluest localities to harass future presidents of the opposing party.

Manhattan District Attorney Cyrus Vance has provided reason to worry about overly political state prosecutors. His critics say he has too often shielded the powerful while harshly punishing minor crimes of have-not New Yorkers. In 2012, he allegedly overruled his own prosecutors, dropping a potential fraud case against Ivanka Trump and Donald Trump Jr. But as political winds have shifted, he overstepped state double-jeopardy rules in the indictment he filed against Paul Manafort.

(The House Democrats have also given good reason for federal courts to scrutinize politically charged subpoenas. The House subpoenas earlier this year asserted a bad-faith pretext of “legislative purpose,” when everyone knows that the House had a mix of motivations—some political, like seeking information to damage Trump in public opinion, and some more legitimate, like investigating high crimes and misdemeanors. For narrowly political reasons, the House leadership was hiding its real reasons—impeachment—to protect Democrats from conservative districts. It is reasonable for courts to demand the real and good-faith reasons for subpoenas, not pretexts, especially in cases infused with a mix of partisan and valid legal motives. The House has subsequently fixed this problem, but their earlier pretexts still cast a shadow on their investigation.)

Because of these dangers, presidents have a good argument for federal jurisdiction—for at least some degree of federal-court review of criminal procedures to ensure that they meet some standard of good faith, reasonability, and balancing the state interests with the president’s executive privilege. The canonical Supreme Court case on this question, U.S. v. Nixon, rejected arguments for blanket presidential immunity like the one here, but instead used a more functional balancing test taking into account the seriousness of the alleged criminality and the burden on the president of compliance. Federal courts should have jurisdiction to review a state subpoena or indictment, but only in the context of making sure there is reasonable suspicion, and balancing these competing interests, not to automatically block state prosecutors.

The problem is that in making this case, Consovoy inadvertently backed into another problem, one much bigger and more alarming. Earlier in the argument, Consovoy had emphasized the danger of “the proliferation” of hundreds of state prosecutors investigating a president, if all 50 states were “unleashed.” Judge Christopher Droney replied, “How is that different from federal grand juries’ subpoenas? There are a lot of state [prosecutors] but there are a lot of federal U.S. Attorneys, too.”

Consovoy’s answer: “Because the Attorney General exercises control at the end of the day over all [those prosecutors].”

In this answer, Consovoy revealed the precise reason state prosecutors must be able to investigate, subpoena, and even indict a sitting president. The world is now witnessing a partisan, conflicted, and perhaps even criminal co-conspirator attorney general capture a Department of Justice to protect a sitting president. Trump’s lawyer Michael Cohen pleaded guilty to a campaign-finance felony, but his co-conspirator client remains unindicted. Somehow the alleged inauguration crimes that other federal prosecutors were investigating and the many other investigations that Robert Mueller spun off have gone dark or have stalled on marginal figures. And, as was reported late Thursday, William Barr is using the DOJ instead to start a criminal investigation of the investigators, while also running around the world to pursue Trump’s conspiracy theories about how the investigation started. Trump mentioned Barr several times in his phone call with Ukrainian President Volodymyr Zelensky. Barr may be violating election laws by soliciting campaign support from foreign governments.

These actions may be more flagrant than those of past attorneys general. But it’s not some new problem to emerge uniquely under Trump: The Office of Legal Counsel’s memo protected Bill Clinton from indictment by relying on an error (wrongly assuming away a statute of limitations problem).  The OLC’s overzealous defense of presidential immunity over so many years is a reminder that the DOJ has too often been a fixer for presidents. And as I’ve explained before, the U.S. attorneys general over the past 100 years—both Democrats and Republicans—have all too frequently been presidents’ cronies or hacks.

It is time for Barr to recuse himself, as the New York City Bar called on him to do on Wednesday. If he fails to recuse, he should be impeached. And meanwhile, conservative federal judges who defend federalism and states’ rights in so many other contexts should recognize that state prosecutors must be able to pursue investigations with all their tools, but with some federal judicial oversight. For now, district courts should do this job. Perhaps the next Congress might create a system for a panel of federal district judges who would review a state subpoena or even an indictment of a president, so that no one judge faces the burden or the question of singular bias, and so that prosecutors cannot “forum shop” for one district judge in a particularly friendly circuit. Another safeguard would be to allow for a fast-track of any appeal directly to the Supreme Court. (An indictment is probably necessary to prevent the statute of limitations from running out while a president is in office, especially for two terms.)

If the judges (and justices) reviewing this case refuse to approve of this kind of federalism in the midst of a real—not hypothetical—crisis in the federal system of investigation, the Department of Justice will need to undergo broad and deep federal reform to make it formally independent of presidents. In fact, it is long overdue to make the Office of Legal Counsel an independent agency, as I have argued before, and to formally make federal prosecutors more independent from presidents and attorneys general. Otherwise, we will continue to have more cover-ups by the DOJ, and in reaction, more state subpoenas and indictments.

Given this very real crisis now, and others in the foreseeable future, it seems a fair balance to reject the Trump team’s second argument—immunity from state investigation—but adopt its first, to give federal district courts jurisdiction to quickly review state subpoenas and indictments of presidents, to balance interests, and to demand good faith.