Trump, Congress, and the Supreme Court: The Day of Reckoning Looms

                There is a looming day of reckoning for Donald Trump and the Supreme Court, and it will

be a moment of truth for both.  Will the Supreme Court follow legal precedent and rule against the president, or will it show its partisan colors and side with Trump?  This is the ultimate for Chief Justice Roberts and the Court’s conservatives, a moment that no doubt the former dreads.

            The Supreme Court will perhaps have its moment that defines the fate of the presidency much in the same way it did back in 1974 and then in 1997.  In the former, President Nixon during House impeachment hearings refused to turn over to Congress and a special prosecutor taped White House conversations, claiming executive privilege.  Nixon counted on winning this battle.  After all, his Chief Justice Warren Burger headed the Court.

            Yet the Court did the right thing.  In United States v. Nixon, 418 U.S. 683 (1974) the Court ruled that while executive privilege did exist as part of the constitutional power presidents had under Article II, such a privilege could not interfere with the Article III powers of the judiciary to do its job and investigate possible criminal activity within the executive branch.  The opinion was 8-0, with Nixon’s own Burger writing the opinion.  For many, the Supreme Court’s U.S. v. Nixon was the final straw that brought down Nixon and led to his resignation.

            Second,  Paula Jones sued President Clinton for sexual harassment for event arising out of when he was governor of Arkansas.   The Supreme Court was asked to rule on whether a sitting president could be subjected to a civil lawsuit.  In rejecting claims of presidential immunity, the Supreme Court unanimously ruled in Clinton v. Jones, 520 U.S. 681 (1997) that he could be.  That decision was critical eventually to testimony that would implicate the president in committing perjury and being impeached by the House.  Both the Nixon and Clinton decisions were critical Supreme Court affirmations of limits on presidential power.

            Similar Court battles are now looming with Trump.  A New York prosecutor has demanded Trump’s tax records from his account.  Congress wants them too.  Trump refuses to let his staff testify before Congress or honor congressional subpoenas.  He or his administration has gone to court to challenge the requests.  In many case lower courts have ruled against him, and now Trump is asking the Supreme Court to intervene.  There are at least four areas or issues in which the law is settled by past precedent or where decisions by the Supreme Court  could tip the balance of power between Trump and Congress.

            Congressional Investigatory Power.  Cases such as McGrain v. Daugherty,273 U.S 135 (1927) Barenblatt v. United States, 360 U.S. 109 (1959), and U.S. v. Nixon, 418 U.S. 683 (1974) stand for the proposition that Congress has broad investigatory powers backed up subpoena power to enforce compliance.  In both Daugherty and Nixon, the investigations involved investigations into possible criminal activity in the executive branch perhaps involving the president himself.  In these cases the Court ruled for Congress.   There is also  Committee on the Judiciary v. Miers, 558 F. Supp. 2d 53 (D.D.C.2008) ruling that executive branch senior officials must comply with congressional subpoenas to testify.  Since these decisions few question the authority and scope of congressional investigatory authority and current precedent suggests requests that at least in cases when it involves possible criminal activity, White House officials must comply with the subpoenas.

            Prosecutorial Subpoena Power.  Prosecutors  have broad power to investigate crimes and gather evidence of it.  This is the case  in when the president is the target of investigation.  While there may be Office of Legal Counsel Memoranda contending a sitting president may not be indicted for a crime, they did not dissuade the Supreme Court in U.S. v. Nixon from ordering the president to comply with a federal prosecutor’s subpoena.  It should not matter now that the prosecutor demanding Trump’s tax records is a state one, the same principle applies.

            Congressional Impeachment Power.  In Nixon v. United States, 506 U.S. 224 (1993) Chief Justice William Rehnquist wrote the plurality opinion  for a unanimous Court ruling that matters of impeachment are political questions and not subject to review by the federal courts.  This case involved a constitutional challenge by a federal judge  over procedures  used when he was impeached by the House and convicted by the Senate.  The significance of this ruling  is that the House and Senate have broad leeway to undertake impeachment investigations and trials.  They suggest that challenges by a president that he is not getting due process, or that there are specific evidentiary or other procedural issues that must be followed (no admission of hearsay or secondary accounts), or that what counts as a high crimes and misdemeanors can be reviewed the federal courts should be  dismissed.

                Presidential Pardoning Power.  Perhaps the one area where one hopes the Supreme Court deviates from existing precedent is in regard to presidential pardoning power.  Article II, section 2 of the Constitution grants the president pardoning power.  In cases such as Ex Parte Garland,  71 U.S. 333 (1867), and Murphy v Ford, 390 F. Supp. 1372 (1975), the judiciary gave the president “unlimited” authority to  issue pardons.   These cases did not raise significant interbranch or separation of powers issues that hindered the powers of Congress or the federal courts.

            However, assume that the Trump administration continues to resist congressional subpoenas and Congress eventually holds officials in contempt, as it is allowed to do.  Can the president issue pardons to  overturn the contempt citations?  Current precedent either supports this if Garland and Murphy are read broadly, or we do not know if read more  narrowly.   If the Supreme Court were to uphold presidential pardons to thwart congressional contempt citations it would vastly undermine  the latter’s investigatory powers and tilt power significantly in the direction of the president to undermine oversight.  One would hope that while the Supreme Court would continue to give broad discretion to presidents to issue pardons, it cannot come at the expense of diminishing congressional authority.  One hopes that the Court would follow the logic of U.S. v. Nixon and rule that pardoning power must yield to the needs of Congress to do its job and to allow for investigation of possible criminality in the executive branch.

                In these four areas of law the Supreme Court will potentially decide the fate of the Trump presidency, and the scope of presidential power going forward.  Trump’s refusal to cooperate with investigations flies in the face of legal precedent and rests upon dubious executive branch Office of Legal Counsel memos that do not have the force of law and which have not been tested in court.

We know that Justice Roberts is acutely aware of the impression that the Court is increasingly seen as a political body, and he pushed back against Donald Trump who contended that there were “Obama judges.”  He has done so despite the fact that there is overwhelming evidence that the conservatives on the Roberts Court are voting ideologically, and with a current Supreme Court stacked with five Republican presidential appointees, including two by Trump.

            Were this Court to overrule or, more likely distinguish current precedent when it comes to congressional investigations, impeachment power, or prosecutorial power, or expand presidential pardoning authority in ways that favor the president it would not only tip the balance of power in favor of Trump, but also cement the image of the Court as no more than partisans wearing robes. 

Chief Justice Roberts is facing a day of reckoning, and one wonders whether he can rise to the challenge.

Trump, Cohen, and the Limits of Privilege

The limits of two privileges–executive and attorney/client–may determine the fate and future of the Trump presidency.  But if Donald Trump and his attorney Michael Cohen think that they can stand on the absolute nature of these two privileges as final fire walls that prevent prosecutors and attorneys from gaining access to potentially incriminating evidence, the law is clearly against them.
Executive privilege is what Donald Trump as president may try to invoke if he seeks to squash subpoenas issued by the special prosecutor in the criminal investigation into Russian collusion or other alleged illegal activities.  Executive privilege is grounded in the concept of separation of powers–found especially in Article II, section 2 of the Constitution.  The concept of executive recognizes that some conversations of the executive (which includes the president) are insulated from scrutiny by other branches.  There may be times when the president needs confidentiality to have candid high-level conversations, tossing about ideas or policy options, for example.  Yet this privilege is not absolute, as the Supreme Court said in U.S. v. Nixon, 418 U.S. 683 (1974).
In Nixon at issue was whether president had to comply with subpoenas from a special prosecutor seeking tapes of White House conversations that could possibly be evidence in a criminal matter.  Nixon asserted that executive privilege is absolute, the Court rejected that claim.    It declared: “[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” (418 U.S. 706)  More specifically, when weighing executive privilege against the needs of the fair administration of justice, the Court declared:

We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” (418 U.S. 713)

Any generalized assertions that Trump or the White House may make on claims of executive privilege to impede a criminal investigation would be rejected under Nixon.  Whether such action would then rise to the level of obstruction of justice is a different question.  But at the least Trump would lose here.
Similarly, Trump and the White House might seek to invoke attorney/client privilege as a means of protecting some conversations he had either with White House Counsel or his personal attorney Michael Cohen.  Attorney/client privilege protects communication made between privileged persons in confidence for the purposes of obtaining or providing legal assistance for the client.  As the Court said in cases such as Upjohn v. United States, 449 U.S. 383 (1981), this privilege encourages clients to talk frankly with their attorneys, allowing the latter to obtain the information needed to provide appropriate legal advice.  Clients would be hesitant to seek legal advice if they generally knew their conversations would not be confidential.
Generally, attorney/client privilege is absolute–no showing or hardship can overcome it.  The government cannot say that “We know you said incriminating things to your lawyer and we want to know what it was you said.”  The very purpose of the privilege is to protect individuals seeking legal advice from having their conversations exposed.  Yet there are limits to this apparent absoluteness of attorney-client privilege.  First, in In re Grand Jury Subpoena Duces Tecum 112 F. 3d 910 (8th Cir. 1997), then president Clinton sought to invoke both executive and attorney/client privilege to prevent a special prosecutor from securing notes and documents regarding White House conversations with counsel.  These conversations related to the special prosecutor’s investigation of the Clintons’ dealings with Whitewater Development Corporation when he was governor of Arkansas.  Eventually because of Nixon, Clinton dropped  the executive privilege claim, but the Court ruled against him on the attorney/client claim.  It did so by arguing that the use of this privilege  by the White House undermined values such as transparency and the promotion of justice that the government should pursue.  Thus, attorney-client privilege will not protect the president acting in his White House or presidential capacity.
But there is another exception to attorney/client privilege applicable to Trump as a private person and to his attorney Michael Cohen.  It is the crime-fraud exception.   The crime-fraud rule is premised on the notion that lawyers should not be using their legal skills to commit crimes or help their clients break the law.  Such action would be aiding and abetting, for example.  If clients are suspected of using their lawyers to break the law (or attorneys are themselves suspected of the same), attorney-client privileged may be cracked.  How so?
In United States v. Zolin, 491 U.S.  554, 572 (1989) the Supreme Court articulated a test outlining when and how attorney/client privilege may be crack.  That test is best described in United States v Chen, 99 F.3d 1495 (9th Cir. 1996).

First the government must satisfy the judge that there is “a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime-fraud exception applies,” and then if the judge decides this question in favor of the government, the otherwise privileged material may be submitted for in camera examination.(99 F. 3d at 1503).

Under the Zolin-Chen test, a judge must be persuaded that a preliminary showing has been made to think that examination of attorney/client conversations will indicate a crime has been committed.  In the case of the Michael Cohen, a prosecutor probably made that showing to a judge, resulting in the issuance of a search warrant to secure his records, including those with Trump.  The next step is a separate hearing for a judge to examine the materials to decide if the crime-fraud exception applies.  This is probably the hearing that is going to happen and which the media seemed perplexed about.  If then the judge is convinced that the exception applies, then it may be used against Cohen or Trump.
Finally, there is another privilege that Trump may invoke–the right of a president not to be  burdened by civil law suits in office because actions such as Clinton v. Jones, 520 U.S. 681 (1997).  Here, President Clinton was facing a sexual harassment suit by Paula Jones arising out of his actions as governor of Arkansas.  He argued that the civil case against him should not proceed because it would impede his duties as president.  In effect, separation of powers gave the presidency was a temporary immunity or privilege against civil lawsuits.  The Court against rejected this claim, asserting that the presidency did not provide the type of immunity Clinton asserted.
Collectively, Nixon, Zolin, and Jones stand for the proposition that presidents are not above the law.  They cannot invoke executive or attorney-client privilege to hide from criminal or civil liability.  These privileges are not absolute and at some point–which appears now–Trump and his attorney are confronting this reality, and the law will win.