Can a State District Attorney Prosecute the President?

On August 29, 2019, Manhattan District Attorney Cyrus R. Vance, Jr., having opened a criminal case against President Trump, had a New York state grand jury issue subpoenas for Trump’s personal financial and tax records “dating from 2011 to the present.” Attempting to quash the subpoenas, Trump immediately sued on his own behalf. Trump v. Vance, now before the U.S. Supreme Court, has been rescheduled for oral argument in May, exact date to be determined. The Department of Justice has joined the case with an amicus in support of Trump.

As reasons for the subpoenas, Vance offers “multiple public reports,” about possible “criminal misconduct” dating back to 2005 at the Trump Organization in New York and about Trump’s possible role in the activities of his lawyer Michael Cohen’s guilty plea to charges of violating federal campaign finance law concerning the payment of “hush money” to a woman.

According to previous Supreme Court rulings involving similar historical events—including the impeachment of President Clinton and the near-impeachment of President Nixon—a president or former president is immune from civil suits for his actions as president (Nixon v. Fitzgerald), may be subject to civil suits for his actions before he was president (Clinton v. Paula Jones), and may not be immune from disclosures of presidential communications (United States v. Nixon).

Of course, under Article II, Section 4 of the Constitution, a president may be impeached by the House for “high crimes and misdemeanors” and convicted by the Senate. According to a Justice Department opinion, Article II prohibits the criminal prosecution of a sitting president. In its ruling for Vance, the Second U.S. Circuit Court of Appeals said that the president was claiming a “temporary absolute presidential immunity” which has no “historical and legal precedent.”

Vance’s Understanding of Federalism

In his brief in the Supreme Court, Vance states that his subpoenas concern “transactions that are unrelated to any official acts of the President, and that occurred largely before [Trump] assumed office.” He argues that the constitutional question of presidential immunity during office that was at the core of the Nixon and Clinton cases are not relevant precedents because the subpoenas are directed not at Trump but at his properties, holdings, and taxes. (But since Vance is seeking tax records “to the present,” the subpoenas must perforce include Trump’s presidential salary.)

Vance contends that the court has already ruled that the president of the United States is “subject to” subpoenas under United States v. Nixon and can be sued while in office under Clinton v. Jones. He additionally argues that “the ordinary principles of federalism” support his case because his are not federal subpoenas. Explicitly citing the 10th Amendment, Vance points out that the powers of the federal government are “limited,” while “the remaining powers are reserved to the states,” which have their own “sovereign powers.” The states have “a generalized police power” to prosecute crimes “within their borders.”

Trump Answers

In his own brief, Trump states that the case is an historically unprecedented attempt by a local prosecutor to “subject the sitting President of the United States to criminal process.” Citing Nixon v. Fitzgerald, he maintains that a president should have “temporary immunity” while in office. With no immunity from state prosecution while in office, “the cumulative effects of permitting every state and local prosecutor to take the same steps the District Attorney did,” would make it impossible for a president to “serve the national interest.” The Second Circuit’s holding that only his financial records are being subpoenaed is meaningless, Trump avers, because Vance himself has said that Trump is “a subject of the investigation.” The president contends that he is obviously and in fact the “target” of the investigation and points out that the subpoena “names him personally and seeks his private records.”

Trump regards Vance’s public statements as tantamount to the possibility Vance “may well charge him while he is in office.” The court’s holdings in Clinton and Nixon are not controlling because they “arose from federal proceedings—a point that was emphasized in both decisions.” On the whole, Trump’s brief asserts that “the District Attorney has no answer to the special problems created by giving the power to ensnare the Chief Executive in compulsory criminal process to every state and local prosecutor in the country.” Trump does concede that he may be subject to the criminal process “once he leaves office.”

The Justice Department Maintains Federal Supremacy

Declaring that the case “involves the first attempt in our Nation’s history by a local prosecutor to subpoena personal records of the sitting President of the United States,” the Department of Justice in its amicus brief maintains that the Court should apply a “heightened showing of need.”

Vance’s case against a sitting president, the Justice Department contends, would interfere with the conduct of the office of the president under Article II. The Justice Department asserts that, unlike the other two branches of the federal government, the “executive power” is vested in “a single person.” They go on to quote Justice Stephen Breyer concurring in Clinton v. Jones that the president is the “sole indispensable man in government.” And the department likewise cites United States v. Nixon’s holding that a “demonstrated, specific need,” lacking here, is necessary to require a president to respond to a criminal subpoena. In addition, the Justice Department offers its own long-held internal policy and constitutional interpretation—which, it says, the Court “has never” had occasion to “confront[]”—dating back to the Nixon era “that Article II prohibits the arrest, indictment, or criminal prosecution of a sitting President.”

The question goes beyond the presidency by itself to the entire structure of constitutional government.

Citing McCulloch v. Maryland that “the very essence” of the national government’s supremacy “exempts its own operations” from “every power vested in subordinate governments,” the Justice Department asserts that Vance’s subpoenas violate the supremacy clause by interfering “with the federal government’s autonomy or exercise of its constitutional functions.”

The Justice Department also contends that although the Supreme Court in Clinton v. Jones (a lawsuit that was initiated in a federal district court) deferred the question of civil process over a sitting president in state court, the court nevertheless concluded that “any direct control by a state court over the President” may “implicate concerns that are quite different.” It is a commonplace that all “federal officials” have “immunity from action by the States,” the Justice Department maintains. And that obviously includes the president.

In the final analysis, under Article I, Section 2 of the Constitution, the House of Representatives is given the “sole” power of impeachment, per Article II, Section 4, of the “President, Vice President, and all civil officers of the United States” for “high crimes and misdemeanors.” And under Article I, Section 3, an impeached federal officer, “convicted” by the Senate, is subject to “removal from Office.” He is, nevertheless, still “subject to Indictment, Trial, Judgement, and Punishment, according to Law.” But the implied meaning is that indictment, judgment, and punishment can occur only after a president is no longer in office. In Federalist 69, Hamilton explicitly said so: a removed president may “afterwards be liable to prosecution and punishment in the ordinary course of law.” (emphasis added).

The Constitution provides that the two houses of the national legislative power, which are directly dependent on and accountable to the people and to the states, rather than to a federal or state judicial branch with its normal indictment and trial. This is the proper way to deal with any supposed criminality of a president. What high crimes, federal or state (including state tax laws), for which a president may be impeached are not specified. The Constitution does, however, prescribe where those crimes of a sitting president must be considered and resolved: in the Congress. State authority is excluded.

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About Thomas Ascik

Thomas Ascik retired after nearly three decades as an assistant United States attorney.

Photo: Jeenah Moon/Getty Images

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