Trump's Lawyers Just Told the Supreme Court That He’s Completely Above Criminal Law

“The president is not to be treated as an ordinary citizen,” Trump’s lawyer Jay Sekulow said.
May 12, 2020, 5:14pm

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WASHINGTON — President Trump’s lawyers hit the Supreme Court Tuesday to argue against releasing their boss’ tax returns to prosecutors or Congress.

And if there’d been any expectation that they might tamp down their unprecedented big claim that Trump is absolutely immune to criminal law so long as he’s in office, they dashed that idea immediately.


Criminal law, they said, is for ordinary Americans. And Trump is nothing of the kind.

“The president is not to be treated as an ordinary citizen,” Trump’s lawyer Jay Sekulow said. And therefore, he said, a “criminal process targeting the president is a violation of the Constitution.”

The claim arose as the court heard historic arguments over presidential power that could decide the balance of power among the presidency, Congress, and state criminal prosecutors for decades to come. Trump is seeking to block subpoenas for his records that were sent to his banks and accountant by Congress and a New York state prosecutor.

Trump’s lawyers doubled down on their staggeringly broad vision of a president who’s free to disregard subpoenas of all stripes and insisted he has “temporary absolute immunity.”

“He is the President of the United States,” Sekolow said. “He is a branch of the federal government.”

Some liberal justices seemed unimpressed by Sekulow’s argument.

“You’re asking for a broader immunity than anyone else gets,” said liberal Justice Sonia Sotomayor. She pointed out that other officials, like judges or members of Congress, only enjoy a degree of immunity related to “acts within their official capacity.”

While a Department of Justice policy holds that the president cannot be indicted in federal court, that idea has never been tested in the Supreme Court. The arguments on Tuesday, however, concern subpoenas from a state prosecutor and by Congress sent to Trump’s banks and accounting firm, not to Trump himself.


A decision is expected early this summer — which could mean that Trump’s secret financial documents get turned over to New York prosecutors and Congressional Democrats months before the November election. That would throw a volatile new element into the campaign season with potentially dramatic consequences, depending on what the files reveal.

This is hardly the first time Trump’s lawyers have argued he’s essentially above the law so long as he’s president. Before a lower court, Trump’s lawyers argued that even if he shot someone in broad daylight in downtown Manhattan, he could not be investigated until he’s out of office.

“Nothing could be done? That’s your position?” Federal Judge Chin asked incredulously at the time.

“That is correct,” Trump’s lawyer William Consovoy responded.

Tuesday’s arguments in front of the Supreme Court specifically concern lawsuits Trump brought to stop his banks and old accounting firm from answering those subpoenas sent by the Manhattan District Attorney, Cy Vance, and the others sent by three Democrat-controlled House committees.

Vance is investigating hush-money payouts to women who claimed they slept with Trump prior to the 2016 election, payments that already helped send Trump’s former personal attorney, Michael Cohen, to prison. Congress wants to know whether Trump might have secret financial links to deep-pocketed foreign entities, among other things.


Trump’s lawyers argued that because he’s the president, the requirement to answer a subpoena, or even have to think about one being sent to his financial advisors, is overburdensome for someone tasked with running the country.

And they warned the court on Tuesday that if the subpoena from Vance’s state prosecutorial team was allowed to stand, thousands of other state prosecutors might pepper future presidents with similar claims.

A lawyer for Vance’s team dismissed that idea and said local grand juries simply don’t blast out subpoenas to just anybody, including the president, without some reasonable basis.

“The supposed floodgates have been open for generations, and there’s never been a flood,” Carey Dunne, general counsel for the New York County District Attorney’s office, told the court.

Cover: President Donald Trump speaks about the coronavirus during a press briefing in the Rose Garden of the White House, Monday, May 11, 2020, in Washington. (AP Photo/Alex Brandon)