Chemerinsky: Supreme Court affirms that president is not above the law

The front entrance to the U.S. Supreme Court Building in Washington, D.C.

The U.S. Supreme Court rejected arguments that the president is immune from investigative and criminal proceedings while he is in office. (Photo: U.S. Bureau of Land Management)

The U.S. Supreme Court today (Thursday, July 9) rejected efforts by President Donald Trump to shield his business and financial records from scrutiny by prosecutors in New York and Congress, but sent the closely watched cases back to lower courts for further consideration.

Berkeley Law Dean Erwin Chemerinsky, one of the nation’s leading scholars of the U.S. Constitution, said in an interview that the decisions uphold the fundamental principle that the president is subject to legal oversight.

Trump and his attorneys had argued that he is shielded from criminal investigations while in office.

But the Supreme Court ruled 7-2 that Manhattan District Attorney Cyrus Vance has the right to see tax and financial records as part of an investigation into the role of Trump and the Trump Organization in paying hush funds to two women who claimed they had affairs with him before he was elected president.

In a second 7-2 ruling, the court said efforts by Congressional committees to see Trump financial records need to be reassessed by lower courts in light of separation of powers issues. In effect, that prevents Congress from reviewing the records pending a final judicial resolution.

a headshot of the dean Erwin Chemerinsky

Erwin Chemerinsky is the dean of UC Berkeley’s law school.

Berkeley News: What is the significance and likely impact of today’s decisions?

Erwin Chemerinsky: The significance of these cases is in reaffirming that no one, not even the president, is above the law. The immediate impact is that the cases will go back to the lower court for further proceedings.

Would it be correct to conclude that today’s decisions amount to a legal loss, but a short-term political victory, for President Trump?

I think the New York grand jury subpoena case is a legal loss for President Trump. The congressional subpoena case is a partial loss and partial victory; the court did not give Trump the absolute immunity he wanted, but it did provide more protection than the congressional committees wanted.

I don’t think it is a political victory for Trump, because no matter what the court decided, it was going to lead to more litigation, which will keep his tax returns secret beyond the election.

What happens next? The president has fought to keep this information private and off-limits to Congress and the public. Does he have incentive to continue this fight?

President Trump, for whatever reason, desperately does not want this information to become public. He is sure to keep fighting in the courts, especially to make sure that it does not become public before the November election.

If Trump were to lose the election, will the cases lose their practical importance?

If Trump loses, the cases remain important as precedents for the future. But learning the financial information about Donald Trump obviously is much less important if he is not in office.

Did the founders ever envision a scenario in which a president, to this extent, would contest the power of Congress and others to conduct oversight?

I am very skeptical of trying to guess what the framers intended, as to situations and a world that they could not have imagined. But we know that the framers were very distrustful of executive power. If they could be asked, I think they overall would be pleased with today’s decisions.