The idea that a sitting president cannot be indicted for his crimes while in office—even if, say, he shot someone on Fifth Avenue—may finally be coming to an end. On Monday, New York federal Judge Victor Marrero handed down an opinion that decimated the idea that sitting presidents should be absolutely immune from criminal prosecution while in the White House.
Before we get into the legal issues raised in this case, let me say that it’s absolutely inconsistent with our system of justice that a president should be above the law while in office. We elected the person to be president, not monarch. Clearly, I’m not alone in that view, as a June poll found nearly 70 percent of Americans support charging a sitting president for any crimes committed, while only 24 percent oppose it.
As I wrote last year in favor of indicting Donald Trump for his crimes, there’s nothing in the Constitution that suggests a sitting president cannot be charged with crimes while in office. Add to that, the Supreme Court has never considered this very question. The reason this is effectively the rule of the law, however, rests merely on two memos written by the Department of Justice’s Office of Legal Counsel, one in 1973 and another in 2000, that reached such a conclusion. But the reasoning of these two memos is not compelling, either from a legal or a practical point of view.
And that is exactly what Judge Marrero, appointed in 1999 by Bill Clinton, articulated in his 75-page opinion Monday. Now to be clear, the issue before the judge was not expressly whether a sitting president be indicted. Rather, the question being litigated was whether Trump could prevent his accounting firm, Mazars USA, from turning over to the Manhattan District Attorney his personal and corporate tax returns since 2011.
The Manhattan DA had subpoenaed these records as part of its investigation into whether Trump broke any New York state laws when he and his company reimbursed his long time fixer, Michael Cohen, for the funds Cohen paid as “hush money” to Stormy Daniels shortly before the 2016 election in order to keep her from going public about her affair with Trump.
Trump tried to stop his accountants from complying with the subpoena by seeking an injunction, claiming that as long as he is in office, he’s above the law. I’m not exaggerating. Trump’s lawyers argued that while in office, Trump “enjoys absolute immunity from criminal process of any kind.”
This goes way beyond not being able to indict a sitting president. As the court noted, Trump was seeking a “virtually limitless” sphere of protection that would prevent everything from prosecution to even investigating him for possible crimes while in office. And astoundingly, Trump even claimed this king-like immunity would also apply to third parties that are in possession of Trump’s information, like his accountants at Mazars, or to his “associates, or relatives who may have collaborated with the president in committing purportedly unlawful acts.” (Trump’s lawyers conceded that no court had afforded a sitting president this much immunity before.)
Judge Marrero was not having any of this, slamming Trump’s goal as being “repugnant to the nation's governmental structure and constitutional values.” He wrote bluntly that Trump’s very argument was one that would place him “above the law” as President, a notion “that the Founders rejected at the inception of the Republic, and that the Supreme Court has since unequivocally repudiated.”
And since Trump’s lawyers premised their argument on the two DOJ memos, the Judge zeroed in on both. Marrero, in a master class of analysis, deconstructed the reasoning of these memos both legally and practically.
He wrote that in order to support presidential immunity while in office, “the DOJ Memos construct a doctrinal foundation and structure to support a presidential immunity theory that substantially relies on suppositions, practicalities, and public policy, as well as on conjurings of remote prospects and hyperbolic horrors.” He added, “The entire theoretical structure could collapse when it encounters real-world application that shakes the underpinnings of the unqualified doctrine” of presidential immunity.
The judge warned that such blanket immunity “could enable the guilty to go free” if the statute of limitations to prosecute the president or third parties expired during “the period of immunity,” thus “frustrating the proper administration of justice.”
As an aside, if a president understands that he will be prosecuted as soon as his term ends, he may try to remain in office beyond constitutional limits to avoid prosecution, hoping a partisan Supreme Court may rule in his favor.
The court also addressed the concerns raised in the DOJ memos that a criminal proceeding involving a sitting president could hamstring “the operation of the whole governmental apparatus.” As the judge explained, not all crimes require the same time to resolve, with some taking years to litigate but others, like “failing to pay state taxes, or of driving while intoxicated, may not necessarily implicate such concerns.” Clearly, the judge was signaling an openness to a sitting president being charged and tried.
In dismissing Trump’s objection to his accounting firm complying with the subpoena, the judge wrote he “cannot square vision of presidential immunity that would place the President above the law with the text of the Constitution.” Trump’s lawyers immediately appealed the decision to the U.S. Court of Appeals for the 2nd Circuit, which issued a temporary stay pending review by a three-judge panel of the court.
But the most compelling part of this decision is the judge gutting the idea that there should be a blanket immunity from criminal prosecution for a sitting president. Of course, this will probably work its way up to the Supreme Court. But for now, we are one gratifying step closer to Trump—or any president, for that matter—no longer being above the law while in office.