President Trump is playing a shell game with the American people and rejecting the founding principle of this nation: We have a president, not a king.
In a case to be argued before the Supreme Court this month, Trump v. Vance, Trump’s lawyers maintain that the president is absolutely immune from criminal proceedings. In their view, not only can the president not be indicted or prosecuted, he cannot even be investigated by law enforcement if he were to shoot someone in the middle of Fifth Avenue, as one of Trump’s lawyers told the U.S. Court of Appeals for the 2nd Circuit.
This breathtaking claim is anathema to the fundamental principle that the law applies equally to everyone, from an ordinary citizen to the president himself. That’s why we have joined 34 other former Republican officials, members of Congress and legal experts in signing a friend-of-the-court brief filed on Monday in support of New York prosecutors seeking to subpoena Trump’s financial records.
Consider the facts of this case to understand how extreme the president’s position is. After reports that Trump paid hush money to two women before the 2016 election, Manhattan District Attorney Cyrus Vance initiated a New York state investigation. He issued grand jury subpoenas seeking evidence from several sources, including a subpoena to Trump’s accountant seeking financial records. Trump has sought to stop his accountant from complying even though 1) the inquiry is focused on actions that occurred before he became president, 2) the investigation involves possible criminal wrongdoing by associates of the president and 3) Trump himself does not need to lift a finger to comply with the subpoena.
The president’s arguments in the Vance case are disturbing enough, but the bigger picture is even worse.
Time and again, he and his lawyers have told state and federal courts, law enforcement and Congress that they can’t hold him accountable for his actions. He does this by playing a shell game —whenever one entity tries to hold him accountable, he insists that only another entity can do so, but then pivots and claims that the second entity also has no power over him.
In several other cases, including two being considered by the Supreme Court along with the Vance case, Trump’s lawyers have argued that Congress is powerless to obtain documents and testimony from the president and his aides. They have also insisted that federal courts are powerless to intervene in such disputes between the executive branch and Congress on the theory that impeachment is the only check on presidential obstruction of Congress while at the same time insisting that abuse of power and obstruction of Congress are not impeachable offenses.
Add it all up and Trump’s argument is that he —unlike every other American —can ignore Congress’s demands for documents, that a federal court can do nothing about it, and he can’t be impeached for it. This makes the president, like a king, completely untouchable.
The president and his lawyers have also claimed that he can shut down any investigation of himself, that he is immune from being sued in state court and that he has the right to pardon himself. And recently, he has repeatedly expressed the view that not only is he above the law, but that he has the “absolute right” to do as he wants with federal law enforcement, including using it to reward his allies and to punish his perceived enemies.
As we explain in our brief, the president’s legal arguments are wrong. But more than wrong, they are, as the district court said, “repugnant to the nation’s governmental structure and constitutional values.”
It is unfortunate that 37 Republicans have needed to come together to say that the president is not a king. Republicans have historically been concerned about a powerful and unaccountable chief executive, recognizing it as a threat to freedom and liberty.
Ronald Reagan said that the “genius of our constitutional system is its recognition that no one branch of government alone could be relied on to preserve our freedoms.” He knew the “great safeguard of our liberty is the totality of the constitutional system” that ensures that no branch of government gets the upper hand.
Trump’s assertions of absolute immunity and his arguments against any form of accountability threaten lasting damage to our constitutional system of checks and balances. Americans should see this threat for what it is: an assault on our democracy.
Donald Ayer served as U.S. attorney and principal deputy solicitor general in the Reagan administration and as deputy attorney general under President George H.W. Bush. Tom Coleman is a former Republican congressman from Missouri. Christine Todd Whitman served as administrator of the Environmental Protection Agency under President George W. Bush and was governor of New Jersey from 1994 to 2001.