U.S. Supreme Court On Absolute Immunity Of The American President (The Case Of Trump V. Vance)

The facts first. Upon receiving a subpoena (a court process which is like a summons from a criminal court in India) from the District Attorney Office of New York County based on a request from a Grand Jury for production of documents on allegations of possible tax evasion and insurance and bank fraud, relating to personal businesses of president Trump a petition in the Federal District Court was filed by the president challenging the legality of the subpoena and the competence of the District Attorney to issue the same to a sitting president.

A grand jury in USA is essentially a legal body, usually composed of 16 to 23 citizens, which is empowered to conduct official proceedings and investigate potential criminal conduct of an accused and determine whether criminal charges should be brought against the alleged wrongdoer. The system of grand jury has continued to exist in USA, having received constitutional recognition, by way of the 5^th Amendment to the American Constitution which reads as follows "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury……". Noticeably, the system of grand jury has been abandoned in most other jurisdictions of the world including India. A grand jury in ordinary legal parlance thus is basically a mechanism for collection of evidence and also for weighing and shifting the same to arrive at a conclusion to proceed or not to proceed against the alleged wrongdoer. While doing so a grand jury is competent to compel the production of documents and record statements on oath by issuing subpoenas (similar to summons issued by Indian Courts). The function of a grand jury is a unique amalgam of both accusatory and investigatory exercises. It is composed of ordinary lay citizens who examine a set of evidence put forth by a prosecutor in a criminal investigation. In USA, unlike a 'trial jury' which is also referred to as a 'petite jury' which participates in a criminal trial in a court of law and returns a finding of 'guilt' or ' innocence' a grand jury is not competent to do so. Matters referred to a grand jury are always handled behind closed doors and are highly secretive in nature. On the basis of the documents and evidence collected the grand jury, in exercise of its accusatory function, determines whether there is 'probable cause' to believe that one or more persons have committed a certain offence.

Coming now to the facts of the present case of president Trump since, the subpoena directed M/s Mazars (the tax accounting firm of president Donald Trump) to produce financial records relating to the president and business organizations affiliated with him, the president, acting in his personal capacity invoked the jurisdiction of the Federal District Court challenging the subpoena. It was the contention of president Trump that under Article II of the U.S. Constitution and the Supremacy Clause, a sitting president enjoys absolute immunity from state criminal process. Trump further prayed for a stay of the operation and effect of the subpoena, as well as, all future steps for enforcing the same. His tax firm M/s Mazars took no position on the legal issues raised by the president in his petition on the specious plea that the dispute was only between the president and the office of the District Attorney of New York County. After hearing arguments the District Court refused to exercise jurisdiction in the matter and dismissed the case on the basis of the earlier Supreme Court judgment titled Younger Vs. Harris, 401 U.S. 37 (1971) wherein it was held that United States federal courts were required to abstain from hearing any civil rights tort claims brought by a person who is currently being prosecuted for a matter arising from that claim. Mr. Justice Black, delivering the opinion of the court had held "a court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by act of congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgements"

Being aggrieved, president Trump approached the United States Court of Appeals for the Second Circuit. The Appeal Court in its judgment did not agree with the District Court's rejection of the appeal on the basis of a mechanical reliance upon the judgment of Younger Vs. Harris. However, it agreed with the District Court in holding that president Trump was not entitled to any preliminary injunction, in as much as, "presidential immunity does not bar the enforcement of a State grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertained to the president". It also rejected the argument of the Solicitor General of U.S.A. that a state grand jury subpoena must satisfy a heightened showing of need and that the judgments relied upon by the Solicitor General, who appeared as amicus curiae in the matter, pertained to privileged Executive Branch Communications and hence, were not relevant to the facts of the present case whereunder the subpoena had only sought information relating solely to the president in his private capacity and was in no manner connected with the discharge of his constitutional obligations. The Court of Appeals, nevertheless, directed that the case be remanded to the District Court and the President was at liberty to raise further arguments as deemed appropriate.

President Trump carried the challenge further to the U.S. Supreme Court by filing a petition for grant of CERTIORARI. By a 7-2 majority the Supreme Court of the United States rejected the challenge. Chief justice John Roberts delivered the opinion/judgment of the court in which Associate Justices Ginsburg, Breyer, Sotomayor, and Kagan, joined. Justice Kavanaugh, and Justice Gorsuch filed a separate common opinion/judgment concurring with the majority view. However, Justice Thomas and Justice Alito field separate opinions dissenting with the majority opinion.

In its majority opinion/judgment the court drew heavily from past precedents i.e. from the celebrated case of United States Vs. Burr, 25 F. Cas. 30, 33-34 delivered by CHIEF JUSTICE JOHN MARSHALL who had also delivered the historic judgment on Judicial Review in the case of Marbury v. Madison. In the case of United States v. Burr, the accused Burr (who became the Vice-President of U.S.A.) had got a subpoena issued from the court directing president Thomas Jefferson to produce a letter received by the president from General Wilkinson and accompanying documents which the president had referred in his massage to the congress. The president had opposed the request arguing that a sitting president could not be subjected to such a subpoena and that the letter might contain state secrets. Chief Justice Marshall rejected the objection and held that the president does not "stand exempt from the general provisions of the constitution" and in particular, the Sixth Amendment's guarantee that those accused have compulsory process for obtaining witnesses for their defense. Further, giving a purposive construction to the Sixth Amendment Justice Marshall held that the expression 'evidence' should also extend to documents and other materials which are relevant for the defense. In his judgement he held thus: "A subpoena duces tecum, may issue to any person to whom an ordinary subpoena may issue. No fair construction of the Constitution supported the conclusion that the right to compel the attendance of witnesses does not extend to requiring those witnesses to bring with them such papers as may be material in the defense. And as a matter of basic fairness, permitting such information to be withheld would tarnish the reputation of the court. As for the propriety of introducing any paper, that would depend on the character of the paper, not on the character of the person who holds it." Rejecting the argument that the King being the vicar of god on earth can do no wrong i.e. the Divine Right theory, Chief Justice Marshall had held "At common law the "single reservation" to the duty to testify in response to a subpoena was "the case of the king, whose "dignity" was seen as "in compatible" with appearing "under the process of the court". But Marshall explained that a king is born to power and can do no wrong. The president by contrast is of the people and subject to the law". Unimpressed by the submissions that making the president submit to a court process would impair his duties as Chief Magistrate which demands his whole time for national objects, Marshall held that those demands were 'not unremitting' and should the president's duties preclude his attendance at a particular time and place, a court would work that out upon returned of the subpoena. All these reasoning of Chief Justice Marshall in the case of United States Vs. Burr were profitably quoted by Chief Justice John Roberts in the majority opinion.

The majority view also rejected the president's contention that complying with state criminal subpoenas would necessarily distract the chief executive from his duties and further rejected the reliance of the president on the judgment of the Supreme Court in the case of Nixon v. Fitzgerald 457 U.S. 731 (1982) which had recognized a presidents absolute immunity from damages liability arising out of his official acts. In doing so the court relied upon the earlier case of Clinton v Jones 520 U.S. 681 (1997). The majority opinion also rejected Trump's claim that the stigma of being summoned will undermine his leadership at home and abroad by holding that there is nothing inherently stigmatizing about a president performing the citizens normal duty of furnishing relevant information to a criminal investigation. The majority judgment also rejected the argument that submitting presidents to state criminal process will make them easily identifiable targets for harassment.

The court also took into consideration the fact that the judgment of Chief Justice Marshall in United States v. Burr had stood the test of time and was good law which has been reinforced by subsequent events. Successive president's had accepted Chief Justice Marshall's ruling that the chief executive is subject to subpoena. In 1818 president Monroe offered to sit for a deposition and ultimately submitted answers to written interrogatories. In 1875 President Grant had submitted a three hour deposition in the criminal prosecution of a political appointee. Similarly, President Ford had also submitted to a court process and had deposed in the trial of his attempted assassin. President Carter had also testified in a case through videotape deposition. In the historic Watergate case President Nixon's challenge to the subpoena for production of oval office recordings failed and he had to submit to the criminal process.

President Trump as well as the Solicitor General for USA had also sought to distinguish all the earlier judgments by arguing that there was no earlier precedent adjudicating the effect of a subpoena issued by a state attorney on behalf of a grand jury of the state on the powers of the President as detailed in Article II and the Supremacy Clause and that the earlier tests and standards applied by the Supreme Court were only to a federal subpoena which could not apply ipso facto to a subpoena issued by the office of the state attorney of New York. They contended that a 'heightened need' standard ought to be adopted in such a different situation in keeping with the federal structure of the constitution and the supremacy clause. The court also rejected this argument and reasoned that applying any 'heightened standard' would extend protection designed for official documents to the president's private papers. In doing so the majority once again relied upon the case of United States v. Burr which in the clearest of terms had held that "If there be a paper in the possession of the executive, which is not of an official nature, he must stand, as respects that paper, in nearly the same situation with any other individual". The court further held that "a double standard has no basis in law and therefore, nothing in Article II or the Supremacy clause supports holding state subpoenas to a higher standard than their federal counterparts".

Having dismissed the writ of certiorari the court held as follows; "the arguments presented here and in the Court of Appeals were limited to absolute immunity and heightened need. The Court of Appeals, however, has directed that the case be returned to the District Court, where the President may raise further arguments as appropriate. We affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion." After remand of the case, a second innings commenced. The challenge was once again carried by president Trump upto the Supreme Court which finally put the issue at rest by dismissing the case. Consequently, President Trump had to submit the documents to the District Attorney Office as directed in the subpoena.

The case of Donald Trump v. Cyrus R. Vance is a shot in the arm for Indian Criminal Courts and can be profitably applied in India to the political executive. Chapter VII of the Code of Criminal Procedure, 1973 deals with process to compel the production of things. Sections 91 and 92 of the said chapter expressly allows the court or officer in-charge of a police station to issue summons for production of any document or other thing and failure to do so would invite penal consequences.

EXPLANATORY NOTES:

Article II of U.S. Constitution

SECTION. 1.

The executive Power shall be vested in a President of the United States of America………….

SECTION. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

SECTION. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Amendment VI of U.S. Constitution

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Article VI, Clause 2: The Supremacy Clause

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. The Supremacy Clause, establishes that the federal constitution and the federal laws take precedence over state laws and even state constitutions. It prohibits states from interfering with the federal government's exercise of its constitutional powers and from assuming any functions that are exclusively entrusted to the federal government