(Bloomberg Opinion) -- A federal district judge in New York has held that the Manhattan district attorney may subpoena Donald Trump’s tax records as part of a criminal investigation.
Apart from the obvious political implications, there’s something constitutionally significant about the decision by Judge Victor Marrero, a Bill Clinton appointee. The judge took the opportunity to attack two memos written by the Department of Justice, both of which maintain that a sitting president cannot be criminally prosecuted. These memos form the basis for the department’s current policy of not indicting a sitting president in federal court.
Yet the judge left no doubt that he considered the memos’ conclusions “not warranted” — and that in his view, a president can be criminally investigated and perhaps even prosecuted while in office.
This is the first time a federal court has ever seriously raised the possibility that a sitting president could be criminally prosecuted. Although the judge’s decision will certainly be reconsidered on appeal by the U.S. Court of Appeals for the Second Circuit — and very possibly by the Supreme Court — it needs and deserves serious attention on its own terms.
In a sense, Trump’s lawyers opened the door for the judge to make his attack on the Justice Department memos. After the Manhattan district attorney’s office issued the subpoena as part of the state criminal investigation triggered by Michael Cohen’s revelations, Trump sued the district attorney in federal court. The theory of his suit was that a sitting president must be treated as immune from all criminal investigation of any kind.
This radical theory goes well beyond anything the Supreme Court has ever said. Indeed, the closest Supreme Court precedents regarding subpoenas against the president strongly indicate that the president may be subjected to subpoena. In the 1997 Clinton v. Jones case, the justices held that a sitting president could be subject to civil lawsuits, which of course include plenty of subpoenas. And in the 1974 Nixon tapes case, the justices rejected Nixon’s claim of presidential privilege to refuse to comply with subpoenas that were needed for a criminal investigation.
Both decisions emphasized the principle that the president is not above the law.
In order to buttress his argument, then, Trump couldn’t really rely on judicial authority. So his lawyers emphasized the DOJ memos. One dates back to 1973, when the Watergate investigation was in full swing and Vice President Spiro Agnew was separately being investigated for tax fraud. The other dates from 2000, and was written in the aftermath of Clinton’s impeachment.
It isn’t terribly surprising that these memos, both issued by the Office of Legal Counsel in the DOJ, argue in favor of the president. The job of the OLC is to issue opinions on behalf of the executive branch about the president’s legal and constitutional powers. As a result of its institutional position, OLC has traditionally taken a rather maximalist view of the extent of the president’s powers relative to the other branches of government.
The core argument of the memos is that allowing a sitting president to be subject to criminal investigation or prosecution would impair the president’s ability to do his job well. Consequently, the memos reason, the Constitution should be interpreted to protect the president from such investigation or prosecution. The primary emphasis of the memos is federal criminal investigation. Technically the question of state criminal investigation is a little different. But if the main constitutional concern is making sure the president can perform his duties without the interference of a criminal investigation, it would make sense to extend the memos’ logic to state investigations and prosecutions, too.
Marrero’s first salvo was to point out that these memos aren’t law — even though we sometimes imagine they are. The memos’ theory “has gained a certain degree of axiomatic acceptance,” he wrote, as though “their conclusion were inscribed on constitutional tablets etched by the Supreme Court.” But an opinion by the Department of Justice is just that — an opinion, not a statement of law by a court. The memos “do not constitute authoritative judicial interpretation of the Constitution,” the judge wrote.
The judge also went on to note that the memos are ambiguous about the difference between criminal investigation and criminal prosecution.
Marrero then turned to his most powerful — and intriguing — argument: that courts can and must engage in careful, case-specific balancing of the public interest in criminal prosecution against a president’s assertion that he must be able to do his job effectively. According to the judge, some forms of investigation — like demanding Trump’s tax returns — don’t actually take up so much of the president’s time that he can’t do his job. Indeed, he suggested, even a criminal indictment of a sitting president might not distract him too much, provided the actual prosecution waited until he left office.
The judge proposed that the DOJ memos engage in “rhetorical flair” by insisting on a single, general principle that a sitting president can’t be investigated or prosecuted. Such general, abstract rules, he argued, aren’t a good guide to deciding real cases.
The strongest argument against the judge’s position is that, in Clinton v. Jones, the justices thought that allowing the civil suit against Clinton wouldn’t unduly interfere with his ability to do his job as president. But they were wrong, to the extent that the lawsuit played a part in the complicated story of how Ken Starr’s Whitewater investigation eventually led to Monica Lewinsky, to Clinton’s lies under oath and his impeachment. Supreme Court justices, in other words, aren’t necessarily good at predicting the degree of interference an investigation will produce.
Yet the judge is also absolutely right that if the president isn’t to be above the law, there must be some possibility of investigating and even prosecuting him if he commits a crime. If a House or Senate of the president’s party protects him against impeachment and removal, then we could be faced with the horrifying prospect of a criminal president remaining in office.
What we need is a case-sensitive balancing process, one that considers the rule of law but also the importance for the nation of a president able to do his job. Judges and courts aren’t perfect at balancing. But when it comes to crucial decisions about law and the Constitution, they are, ultimately, the only balancers we can trust.
To contact the author of this story: Noah Feldman at email@example.com
To contact the editor responsible for this story: Sarah Green Carmichael at firstname.lastname@example.org
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
For more articles like this, please visit us at bloomberg.com/opinion
©2019 Bloomberg L.P.