John Yoo: Supreme Court smacks Trump and delivers body blow to the office of the presidency

Trump says SCOTUS denying immunity in financial records case is ‘political prosecution’

Thursday’s Supreme Court decision requiring President Trump to turn over his tax returns shows that we should add Chief Justice John Roberts and his liberal majority on the Court to the list of those suffering from Trump Derangement Syndrome (a more advanced form of the Bush version of the disease).

Symptoms include willingness to discard any political custom and undermine any institution, without regard to future consequences, to bring down Trump.

Other sufferers have included presidential primary candidates, former Trump cabinet and White House officials, sitting Senators, members of the House, and governors.


But unlike these members of the “resistance,” when the Supreme Court unleashes its hostility, it permanently damages the office of the presidency.

Chief Justice Roberts and the four liberals on the Court have raised their opposition so high that they are upending the constitutional structure and dooming future presidents to years of harassing investigations that will interfere with their performance in office.

It is a wonder that anyone will want to run for the office, even Joe Biden.

In Trump v. Vance, the Supreme Court started out with a standard rule that the president does not enjoy “absolute immunity” from all lawsuits at all times.

Going all the way back to Chief Justice John Marshall’s subpoena of President Thomas Jefferson during the 1807 treason trial of Aaron Burr, the Court held, “successive Presidents have accepted Marshall’s ruling that the Chief Executive is subject to subpoena.”

In 1974, the Court had enforced a subpoena against President Richard Nixon for the Watergate tapes.

In 1997, the Court held that Paula Jones could pursue her federal civil lawsuit against President Bill Clinton for sexual harassment that occurred before he took office.

But then the Court went awry.  Unlike these earlier cases, today’s case involved a probe launched by a state official, Cyrus Vance Jr., the New York county district attorney, who claims he needs Trump’s tax and financial records to carry out a money laundering investigation.

The Court should have held, as Justices Thomas and Alito clearly showed in dissent, that state officials could not carry out litigation against a sitting president.

The Constitution vests the president with the awesome duties of protecting the national security, commanding the armed forces, carrying out foreign policy, executing the law, and managing the government.


Unlike with the other branches of government under our system, the Framers chose to concentrate all of the powers and duties of the executive into one person – the president – unlike the courts or Congress, which can carry on even if one of its members is disabled or distracted.

A president’s “duties as chief magistrate demand his whole time for national objects,” Thomas wrote, quoting Marshall’s opinion in the Burr case itself.

By allowing Vance’s fishing expedition into Trump’s finances under the guise of a money laundering investigation, the Court places the presidency at the whim of any state official.

Today, it is Vance who is conducting a probe into Trump.

Tomorrow, any district attorney – and there are at least 2,300 of them in the country – could claim that they too are investigating a sitting president for his alleged improprieties before office.

They could claim the right just because any president has a financial interest in their district, visited their district, or had money even pass through their district.

It will become a standard political tactic henceforth for the opposition party to use its state officials to harass and embarrass chief executives, but at the price of distracting them from carrying out their constitutional duties.

Vance does not just distort our politics by validating a new form of political resistance.  It also injures the balance of powers between federal and state governments, and even within the federal government.

Under our separation of powers, the Congress imposes the primary check on the President.  The Framers designed our system for “ambition to counteract ambition,” for Congress to use its constitutional powers to engage in constant struggle with the president for power.

The ability of federal prosecutors to issue subpoenas did not cause such harm, because a president could always dismiss or delay such actions if they truly interfered with his important constitutional duties.

Congress could ultimately respond to presidential abuse with impeachment, as Justice Thomas reminded us today’s companion case, Trump v. Mazars, limiting the scope of Congress’s subpoena powers into Trump’s taxes.

But now Vance virtually adds 2,300 state prosecutors as a fourth branch of government.  They will have a powerful ability to interfere with a president’s ability to carry out his constitutional functions.

The President cannot remove or delay state investigations, as he can with federal prosecutors.  Vance undermines the Supremacy Clause, which prohibits state governments from standing in the way of the federal government’s performance of its duties.

Imagine what will happen in a Trump second term. Any state D.A. from a blue state can file harassing litigation against Trump because of his actions not just before he was president, but because he retains an interest in his business empire now.


What will happen if Joe Biden wins in November? Red state D.A.s will take advantage of Vance and investigate Joe Biden.

Hunter Biden should start hiring better lawyers now.


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