October 28, 2019

Trump’s Immunity Claim Isn’t Immune to Legal and Historical Logic

Daniel L. Alter Alter is an attorney in New York and a former Coker Fellow in Constitutional Law at Yale Law School.

This blog was originally published in the New York Daily News.

Yesterday, in a New York City federal appeals court, lawyers for Donald Trump argued that a U.S. president is absolutely immune from criminal investigation while he or she holds office. Although that principle is nowhere stated in the Constitution, President Trump’s legal team argued that it necessarily must be inferred as a matter of constitutional law to protect the function of the nation’s chief executive. According to the president’s lawyer, the New York County District Attorney’s subpoena to Trump’s accountants for Trump’s tax returns violates that immunity and the court should therefore declare it void.

There is a fancy Latin phrase for what happened next in that courtroom: reductio ad absurdum. Translated, it means “reduction to absurdity.” It refers to a logical argument that disproves an assertion by showing that it ultimately leads to a ridiculous or absurd outcome.

Referring to then-candidate Trump’s infamous boast that he could shoot a person in the middle of Fifth Ave. and not lose any political supporters, one of the judges asked whether local authorities could do anything if, in fact, the president killed someone in the street. Dutifully (though remarkably) taking the president’s legal argument to its inevitable conclusion, Trump’s lawyer answered that law enforcement officials could take no steps against the president while he remained in office — not even if he murdered someone in public view.

Confirming that he actually heard that answer correctly, the judge repeated: “Nothing could be done. That’s your position?” Trump’s lawyer responded: “That is correct.”

That is absurd. It’s absurd even if we suspend simple common sense for a moment and instead examine our precise historical origins. The president’s legal theory breaks with the fundamental obligations of government embraced by our founders. It hacks at the roots of our freedom.

The signers of the Declaration of Independence explained in painstaking detail why we ejected the English King. They wrote that “a long train of abuses and usurpations...evince[d] a design to reduce them under absolute Despotism,” and it was therefore “their right...to throw off such Government, and to provide new Guards for their future security.”

Among the numerous grievances they catalogued, the founders condemned the British throne for having “plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.” They also decried the King’s use of mercenary armies “to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages.” Any “Prince whose character is thus marked by every act which may define a Tyrant, they concluded defiantly, “is unfit to be the ruler of a free people.”

This was our beginning. President Abraham Lincoln famously described us as having been “Conceived in liberty.” It is thus inconceivable that our founders — victims of such despotic power — would go on to design a government in which the chief executive could kill a person in the street, and nothing could be done.

All schools of constitutional interpretation, whether conservative or liberal, should agree on that point.

Fortunately, the courts are not yet faced with prosecuting a murderous president. They are not even faced with an indicted president. For now, the courts need only decide whether the district attorney can subpoena the president’s accounting firm for its client’s tax returns, which are relevant to a grand jury investigation. That’s a long way from Fifth Avenue.

Executive Power, Separation of Powers and Federalism