Heads, Trump Wins. Tails, We All Lose.

Either the president will be elevated above all ordinary law, or future presidents will be hemmed in.

Trump is silhouetted against an American flag
Gerald Herbert / AP

President Donald Trump’s claim of “absolute immunity” from congressional oversight went crashing to its latest defeat last night. A federal judge rejected the White House’s assertion of an executive privilege to prevent former aides from testifying before Congress. Another federal judge approved a Freedom of Information Act request for internal White House emails about Trump’s action to block military aid to Ukraine. These latest rebukes extend a lengthening losing streak for the president in court.

Trump has been losing two fights to protect his accounting records. Those records are sought both by Congress and by New York State criminal prosecutors. Trump has argued absolute immunity in both cases, and in both cases he has been rebuffed by federal appeals courts. Those two cases now seem headed to the U.S. Supreme Court.

It’s surprising, really, in a 230-year-old republic, how many questions about the presidency have gone unanswered by the courts, because nobody ever needed to pose them. What are the exact limits of executive privilege? How, in the modern age, can Congress punish White House aides who defy lawful subpoenas? Can an individual state prosecute a president for state crimes?

The courts have not answered these questions, either because these questions have not arisen or because resolutions have been quietly negotiated when they have.

But Trump is a more aggressive litigant than his predecessors. He makes bigger claims, probably because he has more to cover up. He will force the courts to pronounce answers. Those answers will probably rebuff him, both because his claims sound outrageous and because they so obviously attempt to conceal wrongdoing. Just as hard cases make bad law, so bad cases lead to hard law.

Trump has refused to release any impeachment-related documents to Congress. He has asserted a right to prevent all his aides and even former aides from testifying. He has forced Congress to litigate everything. Should he continue to lose, as he has consistently lost up until now, his attempts to protect himself from oversight will hobble the presidency long after he leaves it.

The case that worries me most is Trump’s attempt to defeat the Manhattan district attorney’s subpoena of his accounting records.

Incredibly, even after all these centuries, the power of a state over a president remains blurry.

On the one hand, we certainly don’t want state and local prosecutors harassing presidents for political reasons. On the other hand, what if Trump did shoot a man on Fifth Avenue—a state crime, not a federal one?

Legal precedents do not guide us.

Vice President Aaron Burr was indicted by the State of New Jersey for his duel with Alexander Hamilton. The charges were dropped, so the case never went to trial. In 1973, Vice President Spiro Agnew negotiated a deal for himself on federal bribery charges rather than test any constitutional issues in court. He pleaded no contest to one count of tax evasion, and resigned. In the 1990s, the Supreme Court ruled that President Bill Clinton could face a civil suit in federal court without bollixing the work of the presidency. But state liability raises all kinds of additional questions about federal supremacy and local jurisdiction. It’s a mess.

To date, presidents have resolved the question “Can a president be investigated and potentially indicted for state crimes?” by the excellent expedient of not committing state crimes. Trump has apparently found that too high a bar. And so the question will head to the Supreme Court to be addressed at last. It’s hard to imagine a favorable outcome for  him in this case—or in any of the cases Trump is now fighting. If he loses, future and better presidents will be hemmed in, in undesirable ways. If he wins, the president will be elevated above all ordinary law.

Courts can sense as well as anyone when a legal argument is advanced in bad faith—not to protect the institution of the presidency, but to protect the personal wrongdoing of the person who happens to be president. Lady Justice is often depicted blindfolded, but the statues never suggest that her nose has been taped, too. She can smell the odor of criminality beneath the abstract claims of executive function and presidential privilege. Rightful disgust with that smell may influence her to limit today an obviously corrupt president in ways that honest presidents may rue tomorrow.

John Adams’s famous prayer, “May none but wise and honest men ever rule under this roof,” expressed more than a pious hope. It expressed a shrewd, precocious awareness of the harm awaiting the whole American system of government, state as well as federal, from a president who is both dishonest and foolish. The system just cannot work around a president whose main concern is committing and concealing wrongful acts. And that unfortunately describes the president the United States now has.