Read more: Trump’s defeat on tax returns signals a big problem for him
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.