David Schultz is a professor in the political science department at Hamline University in St. Paul, Minnesota.
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 Roberts Court, November 30, 2018. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. Photograph by Fred Schilling, Supreme Court Curator’s Office.
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.
MORE: July 24, 1974: Supreme Court decides United States vs. Nixon
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.
Supreme Court Justices circa 1972-75 - Standing: Lewis F. Powell, Thurgood Marshall, Harry A. Blackmun, William H. Rehnquist, Seated: Potter Stewart, William O. Douglas, Warren E. Burger, William J. Brennan, Jr., Byran R. White
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.
Originally published in Schultz’s Take, republished with the author’s permission.
David Schultz is a professor in the political science department at Hamline University in St. Paul, Minnesota. Professor Schultz currently is the editor-in-chief of the Journal of Public Affairs Education and also is on the editorial boards of the Journal of Public Integrity, Election Law Journal, Journal of Comparative Policy Analysis, and Social Science Studies.
