Analysis: US Supreme Court on Immunity for President

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John Austin’s theory of legal positivism argued that a sovereign is not responsible to her subjects, owes no moral obligation and does not need to claim her ruling to be just. This approach has been passed on generations after generations. However, in Trump v. Vance, District Attorney of the County of New York, et al.,, the US Supreme Court, took a different route. With a majority of 7-2, the court ruled against the absolute immunity of the President. It allowed a local prosecutor access to the financial records of the sitting President Donald J. Trump. It further held that the subpoena wanting access to the financial records of the President in power does not require to meet the heightened need standard.

This was the first time the Court was dealing with a state criminal subpoena issued to a President.                                                              

Factual background

The New York District Attorney, on behalf of a grand jury, served a subpoena duces tecum to the personal accounting firm of President Donald J. Trump and sought access to his personal financial records. President Trump, acting in his individual capacity, sued the local prosecutor and contended that as per Article II of Supremacy Clause, the President enjoys absolute immunity from state criminal process and asked the court to issue a “declaratory judgment that the subpoena is invalid and unenforceable while the President is in office”.

The District Court and The Second Circuit denied injunctive relief to the President and allowed the enforcement of subpoena seeking the documents.

The Court held as under:

Presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce nonprivileged material, even when the subject matter under investigation pertains to the President.”

Dismissing the President’s argument, the Court gave primacy to public interest and just proceedings. It held that “the public has a right to every man’s evidence”. Following John Marshall’s approach in the treason case, where the subpoena was directed to the President Thomas Jefferson, it was held that subpoenas do not “rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions”

It was contended by President Trump that such state criminal subpoenas make the Presidents easily identified targets for harassment and undermine the executive’s liberty to deal with the State affairs. On this contention the court observed that “even if a tarnished reputation were a cognizable impairment, there is nothing inherently stigmatizing about a President performing “the citizen’s normal duty of . . . furnishing information relevant” to a criminal investigation.” The Court held that even in the past, Presidents (from Jefferson to Clinton) have been summoned to produce the required documents and therefore the sitting President cannot eschew the liability.

It was further held that subpoena is not the last resort and is not bound to meet the heightened standards to ensure that no unreasonable extension to the protection is given to the President’s private documents. The Court, while referring to Aaron Burr’s Case, held that with respect to the private documents of the executive, President stands at par with any other individual and cannot take the defence of his chair.

The Court, refuting the exclusivity of the President and lack of heightened need standard, held that there are remedies available under the law, which allow the President to question the alleged unconstitutional influence and, the Court to dismiss sham subpoenas. The Courts have been given the power to nip vexatious subpoenas in the bud vis a vis uphold the independence and position of the President in the constitutional scheme. Therefore, for all these safeguards, absolute immunity is not required.

Dissenting Opinion

Justice Thomas and Alito gave their dissent against the local subpoenas directed to the President. Both the judges were of the opinion that these local subpoenas question the functioning of the Government. They expressed that these subpoenas undermine the efficacy and the well-being of the nation and therefore, keeping in mind the separation of power between the Federal and States, all these local prosecutors should not be given the power to question the authority of the President.

Author’s Analysis

A sovereign has always been treated as a demigod. The absolute powers given to our leaders has time and again made it difficult to question the feasibility of their commands and treating them as an integrated personality has given them this inherent sense of immunity that will ensure that they are never called out for their actions.

However, the recent judgement of the US Supreme Court gave the much needed reassurance that leadership can be subjected to checks and balances. The Court struck a balance between the interests of the public and the powers of the executive, which was the crying demand of the current times. Equity and primacy of citizen’s rights was the driving force behind the judgement given in the case. The requirement for the President to produce the documents in Court just like his fellow citizens, proved that nobody can evade a criminal investigation and the judicial direction. It was established by the Court that the President is not infallible and is bound to answer the Court and his people for his actions.


“No man is above the law and no man is below: nor do we ask any man’s permission when we ask him to obey it”Theodore Roosevelt

The judgment embarked on a new journey to establish a parity of treatment between the individuals of a State and the President when it comes to an alleged violation of any state law. The Court via its judgement reinstated that United States is a nation of law and no one is above the law, not even the President and it treats everybody the same.

Author: Ananya Bajpai, West Bengal National University of Juridical Sciences (NUJS), Kolkata.

Editor: Astha Garg, Junior Editor, Lexlife India.

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