Trump’s critics chopped down another tree in the forest of laws and legal norms to pursue their devil, but to the harm of future presidents and the country.
Trump’s critics chopped down another tree in the forest of laws and legal norms to pursue their devil, but to the harm of future presidents and the country.
W as charging a Trump business aide for tax evasion worth the permanent damage to the presidency? After reading the indictments handed down last week, the former president’s supporters and critics should agree that the answer is no. President Biden may well suffer the harm, too.
After three years of criminal investigations into the businesses of the former president, Manhattan district attorney Cy Vance persuaded a grand jury last week to indict Allen Weisselberg, the chief financial officer of the Trump Organization. Prosecutors claim that Weisselberg, and the company as a whole, engaged in a scheme for the past 15 years to hide fringe benefits — an apartment, car, school tuition — from tax authorities.
Recall that ever since the criminal probe began, legions of commentators predicted that Vance would undoubtedly uncover fraud and wrongdoing by the president himself. Democrats in Congress buttressed Vance’s attack by demanding that Trump hand over his tax returns and other financial records. When Vance finally convened a special grand jury, the gleeful speculation that the former president might even end up in jail reached a fever pitch.
Last week’s indictments, however, should leave Trump’s critics with a sour taste in their mouths. Prosecutors found nothing with which to charge Trump, and instead they are filing the type of tax charges that authorities who aren’t as politically motivated as New York’s handle by requiring back taxes and financial penalties. Weisselberg has pleaded not guilty, and it is not unheard of for companies to provide such fringe benefits to their top executives. Weisselberg’s attorneys say he made an honest mistake — he kept a tally of the payments in the company’s financial records, after all. After all of the litigation, millions spent on the investigations, and attacks from within Congress and the media, we are left only with charges about the proper reporting of income over a 15-year period. It’s as if Vance had gone off on an errand into the wilderness with a hunting party and come back with a few prairie dogs.
What went unmentioned in most of the reports on the indictments is the harm to the presidency from this hunt. Soon forgotten was the fact that Vance had taken his quest for the Trump Organization’s financial records to the Supreme Court. Trump had gone to federal court to stop his accounting firm, Mazars USA, from cooperating with the Manhattan DA’s investigation. Unfortunately, Trump made the broad claim that the president enjoyed absolute immunity from state criminal investigation and so courts had to squash Vance’s subpoenas to his company and its accounting firm. This was an uphill climb, due to the Supreme Court’s 1997 Clinton v. Jones decision, which held that President Bill Clinton could not claim immunity from Paula Jones’s lawsuit alleging sexual harassment under federal civil-rights laws. But opponents of President Trump used litigation to an unprecedented degree to attack him and to delay the advancement of his agenda.
In July 2020, the Court dismissed Trump’s defense of the presidency. “The President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need,” Chief Justice John Roberts wrote for a 7–2 majority in Trump v. Vance. The Court cautioned only that, in order to preserve “both the independence of the Executive and the integrity of the criminal justice system,” the trial judge should manage compliance with the subpoena according to traditional legal and constitutional principles. Small solace that, as Mazars and the Trump Organization soon produced the documents that led to last week’s indictments.
The Supreme Court’s blessing of this attack on Trump undercuts the “energy in the executive” so sought by the Founders. Vance’s criminal investigation into a sitting president by a state prosecutor was unprecedented. It creates the obvious risk, as here, that an official elected by the opposition party might use his or her prosecutorial powers to harass and embarrass the president. As Justice Samuel Alito observed in dissent in Trump v. Vance, our nation has more than 2,300 local prosecutors, many of them elected. The Supreme Court’s opinion now allows any of them to bring a criminal investigation into a sitting president. In their obsession to bring down Trump by any means necessary, his critics have made the presidency vulnerable to state criminal prosecutions brought for partisan purposes.
And think of the future possibilities for political theater. If a state DA can subpoena presidents, he theoretically can arrest and fingerprint them, bring them before a court for arraignment, detain them until posting bail, and even place travel restrictions on them. He could even conduct a trial where the president would have to appear for all proceedings for weeks. A Republican DA not only could charge Hunter Biden for his sleazy business dealings, he could investigate President Biden himself as a co-conspirator.
It is not just the president who would suffer, but the American people. As Justice Thomas wrote in his dissent in Trump v. Vance: “The President has vast responsibilities both abroad and at home,” such as protecting the national security, conducting foreign policy, and executing federal law. In order to give the nation the benefit of “energy in the executive,” the Founders made the conscious choice to vest these many responsibilities in a single individual who could act with “decision, activity, secrecy, and dispatch,” as Alexander Hamilton argued in Federalist No. 70. The investigation will consume the time, energies, and resources that the president should devote to carrying out his constitutional and political duties and advancing the agenda upon which the American people elected him. As Thomas Jefferson had argued when served with a subpoena in the Aaron Burr treason trial, the president’s “duties as chief magistrate demand his whole time for national objects,” rather than racing from one end of the nation to the other to defend himself in court. Even if the president were not immune from state criminal investigation, the Supreme Court should have required — as Justices Thomas and Alito urged — that state proceedings wait on hold until Trump had finished his term in office.
But in the chaotic summer of 2020, the Supreme Court would not take the constitutionally courageous step of suspending an investigation into Donald Trump’s financial shenanigans. Instead, it made the president vulnerable to partisan investigations that not only can damage the incumbent politically, but also interfere with the execution of his high office on behalf of the American people. In exchange, all that the critics of Donald Trump won is the indictment of Allen Weisselberg for 15 years of tax cheating — not the vast criminal conspiracy promised by Vance and other New York officials. In this case, as in others, Trump’s critics chopped down another tree in the forest of laws and legal norms to pursue their devil, but to the harm of future presidents and the American people.