Is — or is not — the President above the law? It looks like we are going to be quarreling over that question as the Congress moves to confront President Trump for the Mueller report. We are going to be popped this poser, too, in respect of Mr. Trump’s aides, Attorney General Barr and Treasury Secretary Mnuchin, who are, among others, rebuffing subpoenas from the Representatives House.
Our sense of it — after reading up — is that both sides will want to avoid assumptions. That’s the gist, too, of an opinion just issued from the chambers of the New Yorker magazine’s constitutional maven, Jeffrey Toobin. He reckons that Mr. Trump is creating a “new constitutional norm” in which the only likely remedy for an executive defying the legislature would be the next election.
Would that, or would that not, mean the president is above the law? That phrase appears in, among other places, the Supreme Court’s opinion in United States v. Nixon. That’s the case in which in 1974 the Nine (but eight of whom heard the case, Justice Rehnquist having recused himself) unanimously required President Nixon to deliver his tapes to a District Court. Sixteen days later, Nixon resigned.
In Nixon, Chief Justice Burger quoted Chief Justice Marshall’s thinking in the 1807 treason case against a former vice president, Aaron Burr. Certain presidential correspondence was sought. Burger wrote that Marshall, the trial judge, “was extraordinarily careful to point out that ‘[i]n no case of this kind would a court be required to proceed against the president as against an ordinary individual.’”
Then this sentence oozed out of Chief Justice Burger’s pen: “Marshall's statement cannot be read to mean in any sense that a President is above the law . . .” Please pause for a moment to savor that sentiment. Rather, Burger went on to write that, Marshall’s statement “relates to the singularly unique role under Art. II of a President’s communications and activities.”
So the Supreme Court warned that it was necessary “in the public interest” to “afford Presidential confidentiality the greatest protection consistent with the fair administration of justice.” That extended “even as to idle conversations with associates in which casual reference might be made concerning political leaders within the country or foreign statesmen.”
Added Chief Justice Burger: “We have no doubt that the District Judge will at all times accord to Presidential records that high degree of deference suggested in United States v. Burr, and will discharge his responsibility to see to it that, until released to the Special Prosecutor, no in camera material is revealed to anyone.”
Which brings us to a distinction. The Supreme Court ruling against Nixon came in decidedly different circumstances than those that obtain in the current contest. In Nixon, it was the special prosecutor, Leon Jaworski, who was seeking the tapes. In the standoff between Congress and President Trump, it’s not the special prosecutor who is seeking the production of papers.
On the contrary, the special prosecutor already has the material being sought (and already decided not to act on it). Here, the subpoena is being opposed by the special prosecutor’s superior, who has also already seen the material. The subpoena is not seeking delivery of the material to a federal judge, who, in Nixon, was the Honorable John J. “Maximum John” Sirica.
Which is important. Maximum John, sitting in a criminal case, could be relied upon by any court to guard presidential secrecy. What court, though, would trust Congress with that kind of responsibility? Papers handed over to Jerrold Nadler will be scattered in the Democratic dust-storm within a matter of hours. Congress’s oversight, after all, is precisely political.
So who is seeking to be positioned above the law? It’s hard to read the precedent as suggesting Mr. Trump is doing that. Nor is the Justice Department, which is on the side of the president; nor has the Justice Department’s special prosecutor moved against the president. No, it’s starting to look like the party seeking to maneuver itself above the law is — wait for it — the United States Congress.