Utah Sen. Mitt Romney showed unusual political courage as the only Senate Republican to vote to convict President Trump. To Romney’s chagrin, however, Trump was acquitted by a Republican Senate majority.
Now it’s the Supreme Court’s turn to get involved in the long-running battle between Trump and Congress. The court will hear oral argument (via teleconference) on May 12 in three cases involving the constitutional limits of investigations into Trump.
Commenting on the Supreme Court in 1953, Justice Robert Jackson famously wrote, “We are not final because we are infallible, but we are infallible only because we are final.”
Justice Jackson recognized that the Supreme Court gets the last word on constitutional questions only because it sits atop our court system – not because the nine justices themselves have a monopoly on wisdom.
This is still true today. When it comes to our most important constitutional questions, the Supreme Court decides. Everyone else talks. And after a multi-year onslaught of competing opinions — mostly raw, partisan-driven assertions — about the proper balance between executive, legislative and state power during the Trump presidency, the Supreme Court is finally weighing in.
It's about time.
In two of the Supreme Court cases, Congress seeks Trump’s business records. In the third, the Manhattan district attorney wants Trump’s tax returns.
In resisting these efforts, Trump argues that he must be protected from harassment by an adversarial Congress and a hostile state prosecutor. Congress and the Manhattan district attorney argue that, to the contrary, no president is above the law and they have legitimate legal bases for getting these records.
More important than these specific legal arguments, however, is the broader context. On the one hand, Trump has unprecedented entanglements between his private businesses and his public office — and a unique disregard for constitutional safeguards against presidential abuse of power.
Trump, for instance, has referred to the Emoluments Clause in the Constitution — which prohibits a sitting president from receiving payments from foreign governments — as “the phony Emoluments Clause.” Expressing a common narrative, Rep. Jerrold Nadler (D-N.Y.) has called Trump “a dictator” who “must be removed from office.”
On the other, Trump has already been investigated to an unusual degree. He endured both the Mueller investigation and impeachment proceedings. And numerous officials from his campaign and administration have been convicted of crimes.
Expressing another common narrative, Attorney General Bill Barr has said Democrats “essentially see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.”
These cases raise questions rooted in unprecedented times. But the ruling will apply for generations. If Joe Biden wins the presidency, the ruling will govern how Republicans can investigate his and his family’s business dealings. It will apply in the future when a dishonest president squares off against a forthright Congress. And it will apply — just the same — vice versa.
Despite his aspirations to the contrary, Trump is not above the law. Winning the presidency is neither a blank check to be lawless in office nor a retroactive license for past bad acts. At the same time, however, it is essential to maintain safeguards that protect the executive against overreaching legislators and state officials. Donald Trump won't be president forever.
Where, then, is the constitutional line drawn? Can the courts force a sitting president to hand over this sensitive private information to his adversaries? The Supreme Court is — for better or for worse — the final authority on constitutional questions. With the court’s opinion expected this summer, we will have the answer soon enough.
William Cooper
William Cooper is an attorney who has practiced law in Utah and written for The Wall Street Journal, Baltimore Sun, New York Daily News, Huffington Post and USA Today, among others.