The President of the United States is pulling out every legal stop he can to prevent both the United States House of Representatives and the New York State District Attorney from requiring his accounting firm to hand over his tax returns and other personal financial information. The House Committee, among other things, is investigating whether the President has violated the Constitution’s Emolument Clauses or committed other wrongdoing. The New York DA is investigating possible financial crimes committed by President Trump and/or third parties. Lower courts have ruled against the President in both cases.
The Supreme Court will likely have to and should resolve these cases. That necessity brings to mind controversial comments made by then-Judge Roberts during his Supreme Court confirmation hearings in 2005. Roberts infamously said the following: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.”
These statements have been roundly criticized by law professors and Court commentators over the years because it is obvious that Supreme Court Justices do make the rules when they apply the Constitution’s vague language and contested history to new and difficult questions. To the extent that Justice Roberts was suggesting a limited role for the Supreme Court in our political system because its role is only one of following the law not making the law, his comments have been properly ridiculed.
However, there are important moments in American history when the country has needed the Supreme Court to act like umpires and resolve disputes between the other two branches of the federal government or between state and national governments. These cases raise different stakes than high-profile legal battles implicating individual rights and governmental coercion. In those cases, the Court should arguably only step in when the governmental practice at issue clearly violates the Constitution. In contrast, when two units of government are fighting each other, neither side is entitled to a presumption of correctness. Moreover, as opposed to cases involving gun, abortion, or other individual rights, disputes between two governments implicate either legal process or the appropriate relationship between two public actors where impasses stall the very workings of our government. In most of those situations, judicial resolution one way or the other is necessary for the smooth functioning of government to continue.
In these subpoena disputes, both the House and the DA are properly performing their constitutional duties. The President’s behavior regarding his hotels and other properties deserves congressional scrutiny, and his incessant refusal to release his tax returns combined with a history of well-documented, shady business dealings suggest the DA is not on a political fishing expedition. In addition, and importantly, the President is not arguing that any of the requested materials are subject to executive privilege nor could he since the materials sought relate to his private finances.
The need for a third party to act as an umpire in these disputes is especially important given the extreme nature of the President’s legal positions. Although there are fine legal distinctions between the two subpoena cases, President Trump’s general argument in both is that the President cannot be investigated for any criminal activity while in office because doing so unduly burdens the Executive Branch and is inconsistent with the separation of powers. According to President Trump, the only permissible avenue for investigation of his alleged misbehavior is formal impeachment proceedings.
There are, however, substantial precedents suggesting otherwise. In United States v. Nixon, the Court required the President to turn over official White House tape recordings as part of a criminal investigation of governmental officials. In that case, President Nixon was an unindicted co-conspirator. Nixon involved official Presidential records while the tax returns and financial documents currently sought by the House and the DA are purely personal. But if a President can be forced to turn over his official materials as part of a criminal investigation, his personal records should also be fair game.
In Clinton v. Jones, the Court ruled that a civil case arising out of events occurring before the President took office could proceed despite Clinton’s arguments that the case should be delayed until after his term expired. If the case could proceed in Jones, then the current investigations should likewise be able to proceed against President Trump. The House’s and New York State’s current investigations into possible financial crimes and constitutional violations by the President suggest even more urgency than the civil case at issue in Jones.
Finally, although according to Nixon v. Fitzgerald, a President can never be personally liable for money damages in a civil suit for his official conduct, the preclusion of any investigation into possible criminal activity by a sitting President, even if a sitting President cannot be indicted while in office (an open question) does not logically follow from that case. Such preclusion would place the President well above the law. For example, President Trump’s lawyers went so far as to argue in the New York case that even if the President shot someone on Fifth Avenue, any investigation by any public official would have to wait until he leaves office. Such immunity makes a mockery of the rule of law.
Even critics of the Supreme Court, like myself, recognize there are rare times when judicial involvement is necessary for the good of the nation. Like the subpoenas that President Nixon were required to comply with, and the civil suit that President Clinton was forced to address, President Trump should not be allowed to block subpoenas issued to third parties outside the government who possess information crucial to legitimate law enforcement and congressional activities. The inter-governmental battles between the President and Congress and the President and the State of New York need an umpire outside of all three governments to resolve these controversies.
Calling balls and strikes is often difficult for baseball umpires and fraught with discretion. But a pitch thrown over the batter’s head is clearly a ball under any reasonable umpiring perspective. Similarly, the argument that the President can shoot someone on Fifth Avenue and there’s nothing anyone can do about it short of formal impeachment hearings is clearly wrong as both a legal and policy matter. This occasion calls for a neutral umpire who will apply the rules fairly. Hopefully, the Supreme Court will play that role.