Next month, the United States Supreme Court will decide whether President Trump’s personal tax and financial records, held by his accounting firm and Deutsche Bank, must be turned over to the state prosecutor in New York and committees of Congress.
The court will likely avoid two absolutist points of view: that a president’s records are safe from prosecutors and congressional committees so long as he is in office, and that there are no limits to what a congressional committee can demand from a president and those who keep his documents.
The first absolutist position, that the president can’t be subjected to legal process while in office, will fall under the weight of the Supreme Court’s 1997 decision in Clinton v. Jones. In that case, President Clinton was sued for sexual harassment and retaliation while he was governor of Arkansas. The U.S. Supreme Court ruled unanimously that the private lawsuit could proceed even while Clinton was president.
The argument that failed is the one that President Trump’s attorneys are trying again now: that it is too distracting to the president of the United States to have a lawsuit proceed against him while in office. Also weighing against Trump’s position is the unanimous Supreme Court decision in Watergate, that tapes of conversations within the Oval Office had to be delivered to the special prosecutor investigating President Nixon’s aides.
With the absolutist position rejected, the trial court could still rule in Trump’s favor when the specifics of his case are considered. A criminal case against the president himself will obviously engage his focus and energies more than a civil case against him (Clinton) or a criminal case against his advisors (Nixon). At present, the New York district attorney is investigating whether then-candidate Donald Trump violated state election law in reimbursing Michael Cohen for paying Stormy Daniels not to tell her story of alleged sexual misconduct by Trump just prior to the election.
However, once he has Trump’s accounting and banking records, the D.A. could expand his inquiry into one of tax evasion and commercial fraud if private citizen Donald Trump claimed the value of his property for which he sought a loan from Deutsche Bank was higher than the value he alleged for state property taxes.
That kind of criminal trial, and all its preliminaries, would constitute far more of a distraction from the president’s constitutional functions than Jones’ allegations against Clinton, and even more than the distraction in the Nixon case, where the special prosecutor made clear he was not going to indict the president. The U.S. Supreme Court’s ruling next month will likely send the question back to the trial court to consider the specifics of what the D.A. is threatening.
The second absolutist position was advanced by the House of Representatives, that two committees’ “oversight” responsibilities entitle them to obtain any documents conceivably relevant to new legislation. Instead, the court is likely to require a much tighter connection between the documents sought from Trump’s accountant and bank and a specific bill under consideration. General “congressional oversight,” a term not found in the Constitution, should not be enough to overcome an accountant’s obligation under state law and professional ethics to preserve a client’s confidentiality, or the president’s argument that Congress going through his private records (with many leaks) would constitute a major distraction to his focusing on his job. So, the court will likely, once again, reject the absolutist view and send the issue back to the lower courts to make a fact-based decision.During the court session, Justice Breyer discussed sending the cases back: “Now all that would take time. The time itself would discourage prosecutors from doing this, which might be good. And time itself would encourage House, Congress, president to work things out in a nonjudicial way.” And, he likely also thought, avoid the Supreme Court being inserted into the middle of a presidential election.
Tom Campbell is a professor of law and of economics at Chapman University. He served five terms in Congress, two years in the state Senate and was finance director of California. He left the Republican Party in 2016 and is in the process of forming a new party, the Common Sense Party of California.
