It is a truism that no person is above the law, but under our Constitution certain office holders are exempt from certain laws. Presidents cannot be prosecuted while serving in office. The question raised by a recent 7-2 decision of the Supreme Court was whether the records of a sitting president can be subpoenaed from a third party as part of a state criminal investigation. Pictured: The Supreme Court Building in Washington, DC. (Photo by Chip Somodevilla/Getty Images)
It is a truism that no person is above the law, but under our Constitution certain office holders are exempt from certain laws. That does not place them above the law. That is the law. For example, members of Congress cannot be held criminally or civilly accountable for action taken (with few exceptions) while in, or on the way to and from, Congress. In other words, a Senator cannot be prosecuted while driving drunk to a Senate debate. The rest of us can be arrested for driving drunk to our jobs. Judges, too, have broad immunity for what they do and say on the bench. It should come a no surprise, therefore, that presidents are exempted from certain laws that are applicable to the rest of us. They cannot be prosecuted while serving in office. That, too, is the law.
The question raised by a recent 7-2 decision of the Supreme Court was whether the records of a sitting president can be subpoenaed from a third party — in this case his financial advisers — as part of a state criminal investigation. There are good arguments on both sides of that question.
The argument for allowing a state to investigate a sitting president, beyond the truism that no one is above the law, is that there is no constitutional bar to prosecuting any president after they leave office. Since evidence gets stale and lost, it would seem to follow that an investigative agency should be able to secure evidence while the president is in office to be used after he leaves office, so long as it is still within the statute of limitations. Even before this decision, there would be no barrier to a state district attorney voluntarily interviewing witnesses for a future prosecution, or securing non-privileged documents or information from those willing to give it. So the decision was limited to documents for which the president has some plausible ownership claim: in this case tax and other financial records in the possession of the president's financial advisors, who are in a fiduciary relationship with him.
The argument against allowing state prosecutors to rummage through a sitting president's papers and documents is that there is no limiting principle. If the District Attorney of Manhattan can conduct an investigation and subpoena documents, so can the district attorneys of every city and county across the United States. There would, of course, have to be a jurisdictional nexus between the president and the jurisdiction investigating him. But for a former businessman like Donald Trump, that would cover hundreds of jurisdictions in which he and his companies did business. A president who received subpoenas from hundreds or thousands of local jurisdictions could become overwhelmed by the task of assisting his lawyers in thoroughly vetting them for claims of privilege. This is not a fanciful prospect in our current age in which the criminal justice system has been weaponized by both parties seeking partisan advantage. I guarantee you that the next democratic president will be investigated, not only by Congress — if either house is in the hands of the opposing party — but also by ambitious local Republican attorneys who have any plausible jurisdictional claim that is within the statute of limitations. A sitting president, like any other citizen, can move to strike subpoenas on several grounds, but that takes time and energy. Moreover, courts generally rule in favor of prosecutors in such cases.
So the Supreme Court's decision may have been a temporary win for candidate Donald Trump, since it is virtually impossible that any of his records will be disclosed before this November's election, but it may also constitute a setback for the power of the presidency and our system of separation of powers and federalism.
It was inevitable that the high court would rule the way it did following its decision a quarter century ago authorizing Paula Jones to civilly sue a sitting president. Despite the unanimity of the justices, I think the case was wrongly decided. If a sitting president cannot constitutionally be tried for a crime, it should follow that he should not be compelled to be a defendant in a civil case, since civil cases can be brought by anybody for nearly anything. I think the recent case was wrongly decided as well. No sitting president should be burdened by an unlimited number of subpoenas from an unlimited number of local DA's, at least some of whom may be motivated by partisan or self-serving considerations.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law Emeritus at Harvard Law School and author of the book, Guilt by Accusation: The Challenge of Proving Innocence in the Age of #MeToo, Skyhorse Publishing, November 2019. He is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.