Can a sitting president commit crimes? The question seems like it should have an obvious answer: Yes. Seventy percent of Americans polled by Quinnipiac last year felt that presidents should be subject to criminal charges. It seems like presidential accountability would be an intrinsic fact of the American democratic project — unlike monarchs, presidents should be held accountable by law. But Donald Trump, predictably, feels differently, and now the battle over Trump's taxes has finally reached the Supreme Court. The president’s legal team has spent several years fighting multiple attempts by Congress and law enforcement agencies to obtain his financial records, claiming that presidents should essentially be given a free pass when it comes to criminal investigations.
On Tuesday, the Supreme Court will hear oral arguments in the case to see Trump's financial records, which wound its way through lower courts before winding its way to the nine justices. At issue is whether congressional investigators and Manhattan's district attorney have the authority to subpoena the president's his financial firms for access to his tax records.
Beyond its obvious impact on the 2020 election — if the Supreme Court sides with investigators, it could potentially give voters a window into any conflicts of interest and shady deals lurking within Trump’s tax filings — the case could also reshape the nature of the presidency and the balance of power between branches of the government.
“Without any sense of exaggeration, this is by far the most consequential Supreme Court case to come out of the Trump Administration,” Jens Ohlin, vice dean of Cornell Law School, said in an interview with VICE News. “If the Supreme Court says that a president cannot be investigated through the criminal process, then future presidents will have free rein to break any local criminal law that they wish. That’s downright scary — a vision of the presidency that’s truly imperial.”
The modern history of presidential culpability is tied to the 1922 Teapot Dome scandal, in which President Warren Harding’s administration made corrupt oil deals. The resulting investigation led to laws that beefed up Congress’s ability to investigate the president and in particular, seek tax disclosures to fight corruption. The legal battle over the laws was settled by the Supreme Court, which declared in 1927, “The power of inquiry … is an essential and appropriate auxiliary to the legislative function.”
Now, hoping to protect whatever’s buried in his tax returns, Trump is trying to overturn this decision. The Supreme Court will hear oral arguments in two cases in which the president is trying to block his accounting companies from handing over documents to congressional investigators — Trump v. Deutsche Bank AG and Trump v. Mazars USA, LLP — as well as a parallel case in which Manhattan District Attorney Cyrus Vance is seeking Trump’s tax forms from Mazars as part of a state investigation.
Congress subpoenaed these records, using the 1927 decision as its legal justification for doing so. Federal judges who have ruled on the case have so far agreed with the legislature's rationale. “Congress plainly views itself as having sweeping authority to investigate illegal conduct of a president, before and after taking office,” wrote federal district court Judge Amit Mehta in a ruling last year. “This court is not prepared to roll back the tide of history.”
Trump’s lawyers, however, do take issue with the tide of history. They are claiming that the legislature simply does not have the right to subpoena such records because the subpoenas lack a “legitimate legislative purpose.” In other words, they are arguing that Congress is overstepping its bounds and attempting to criminally investigate potential corruption in the executive branch, rather than pursuing the documents in order to inform legislation, which is Congress's right.
If a majority of Supreme Court justices agree with Trump's legal team, their ruling could have ramifications far beyond the current president’s shady deals. For nearly a century, investigating the president has been a de facto role of the legislative branch of government; consider how even the impeachment process is cast as a trial with a judge and jurors. Cutting off Congress from its investigatory powers would permanently tilt the scales of the government’s delicate balance of powers toward the executive branch.
Writing in The Atlantic, Quinta Jurecic notes that the fight over Vance's investigation adds another layer of significance to the case. While the question of whether a sitting president can be indicted is “genuinely tricky,” she writes, Trump’s argument goes much further: that a president cannot be investigated at all. After all, Vance isn’t even directly demanding information from Trump — his subpoena is to a third-party accounting firm.
In October, District Judge Victor Marrero ruled against the president in the Vance case, writing that Trump’s argument goes against “the fundamental notion that the president is not above the law.” But it's up to the justices now to decide whether that is in fact true.
A decision in the Supreme Court case is expected by June. If Trump’s appointment of two conservative justices to the court earns him a victory, then future presidents who escape prosecution and investigation for criminal behavior will have him to thank.