Corey Brettschneider, a visiting professor at Fordham Law, and the author of “The Oath and the Office,” wrote an op-ed for the New York Times about whether the President is immune from criminal proceedings.
Does President Trump have immunity from criminal investigation or prosecution, as his lawyer asserts? The answer is no, and now the Supreme Court has the opportunity to make that clear.
The constitutional basis for a claim of absolute immunity is overwhelmingly weak. No part of the Constitution explicitly supports the idea; it is silent on the issue. Instead, the president’s legal team largely appeals to the reasoning in two memos from the Justice Department’s Office of Legal Counsel — memos written during the Nixon and Clinton administrations. Both came to the same conclusion: As the Clinton Justice Department memo said, “the indictment or criminal prosecution of a sitting president would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
That’s one interpretation. But two Supreme Court cases — United States v. Nixon and Clinton v. Jones — put Mr. Trump’s claim of absolute immunity on rocky footing.
In the Nixon case, the court ruled unanimously that a president must comply with a criminal subpoena — in that case, an order to turn over the infamous Watergate tapes. In reaching their decision, the justices did acknowledge the existence of some presidential privilege but rejected Nixon’s claim of absolute privilege in the case because it “cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice.”