Brief Fact Summary.
The President sued the district attorney to enjoin enforcement of the request to produce financial records relating to his business organizations, arguing that under the Constitution, the President enjoys the absolute immunity from state criminal process.
Synopsis of Rule of Law.
The President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.
In 2018, the New York Country District Attorney’s Office opened an investigation into what it opaquely describes as “business transactions involving multiple individuals whose conduct may have violated state law.” A year later, the office requested the personal accounting firm of President Donald Trump to produce financial records relating to the President and the business organizations affiliated with him, including tax returns and related schedules. The President, acting in his personal capacity, sued the district attorney to enjoin enforcement of the request. He contended that the Article II and the Supremacy Clause gives the President absolute immunity from state criminal process. He asked the court to issue an injunction.
Can the President refuse to produce documents in state criminal proceedings directed by the state court?
No, given numerous safeguards and the Court’s precedents, absolute immunity is not necessary or appropriate under Article II or the Supremacy Clause. The Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. This principle still holds and the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.
The Court’s precedents require that a President establish a demonstrated, specific need for the President’s information. However, the President deserves greater protection. Thus, a prosecutor should be required to provide at least a general description of possible offenses that are under investigation, to outline how the records relate to the offenses and to explain the importance of the records. The Court’s decision, however, threatens to impair the functioning of the Presidency and provides no real protection against the use of the subpoena power by the Nation’s prosecutors. Respect for the structure of Government created by the Constitution demands greater protection for an institution that is vital to the Nation’s safety and well-being.
The President claims that Nixon v. Fitzgerald recognized a President’s absolute immunity from damages liability predicated upon his official acts. However, Fitzgerald did not hold that distraction was sufficient to confer absolute immunity. Just as a properly managed civil suit is generally unlikely to occupy any substantial amount of a President’s time or attention, our experiences show that a properly managed criminal subpoena will not normally hamper the performance of the President’s constitutional duties. The President also argues that the stigma of being subpoenaed will undermine his leadership at home and abroad. But even if a tarnished reputation were a cognizable impairment, there is nothing inherently stigmatizing about a President performing the citizen’s normal duty of furnishing information relevant to a criminal investigation.