What is Good for the Goose, is Good for the Gander- Trump v. Vance

The Supreme Court Held on July 9, 2020, In Trump v. Vance That The Constitution’s Supremacy Clause Does Not Categorically Preclude Or Require A Heightened Standard For The Issuance Of A State Grand Jury Subpoena To A Sitting President

In Trump v. Vance issued by the Supreme Court on July 9, 2020, the Supreme Court declined to step back from centuries of precedent and find that as argued by President Trump “under Article II of the Constitution and the Supremacy Clause a sitting president enjoys absolute immunity from state criminal process.” Although the vote counting was superficially a 7 to 2 decision against the President, as stated in the concurrence by President Trump’s two chosen justices, Kavanaugh and Gorsuch, “the Court today unanimously concludes that a President does not possess absolute immunity from a state criminal subpoena, but also unanimously agrees that this case should be remanded to the District Court, where the President may raise constitutional and legal objections to the subpoena as appropriate.” Those objections include any not precluded by today’s opinion.

In reaching its holding, the Court’s five justice opinion by Chief Justice Roberts provides a historical tour of precedent supporting the holding, starting in the opening line and first footnote with Lord Chanceller Hardwicke’s statement in a 1742 Parliamentary debate, during the reign of King George II, that “the public has a right to every man’s evidence,” running to Aaron Burr’s subpoena to then President Thomas Jefferson, seeking evidence from Jefferson to defend Burr against a presidentially supported prosecution for treason and a lesser charge for inciting war against Spain, through other subpoenas to presidents for testimony or evidence relating to crimes, such as a subpoena to President Grant to obtain evidence relating to an appointee who, given Grant’s reputation as a hard drinking general in key battles of the Civil War, appropriately involved tax evasion by whiskey distillers, a subpoena to President Ford for testimony relating Charles Manson associate Lynette “Squeaky” Fromme’s attempted assassination of him, a subpoena to President Carter for evidence relating to an offer by Georgia officials “to contribute to his campaign in return for advance warning to any state gambling raids,” and most recently to President Clinton’s three rounds of testimony “twice via deposition pursuant to subpoenas in federal criminal trials of associates implicated during the Whitewater investigation, and once by video for a grand jury investigating possible perjury.” The Chief Justice omitted any reference to his colleague Justice Kavanaugh’s participation as a member of Judge Kenneth Starr’s Whitewater, later Monica Lewinsky Special Counsel investigation of president Clinton, and the aggressive approach he took at that time to gathering evidence from President Clinton.

Thus, in finding embedded precedent supporting Chancellor Hardwicke’s maxim, as further addressed in Chief Justice John Marshall’s opinion in U.S. v. Burr, 25 F. Cas. 30, 33-34 No. 14,692d)(CC Va. 1807), that a president is not entitled to absolute immunity from state criminal process, the entire court, even the dissenters, rejected the aggressive pursuit of immunity attempted by President Trump’s attorneys. In shaping the law twenty years ago in its pursuit of President Clinton, his opponents obtained a decision in Clinton v. Jones, 520 U.S. 681, 694, 705 (1997) cited by the Supreme Court today in rejecting important aspects of President Trump’s position – that complying with court process would divert a president from his or her duties. Thus, President Clinton’s activist opponents, who at some level tend to be President Trump’s supporters, including their judicial appointees, are by their legal positions taken more than two decades ago, “hoist with [their] own petard,” W. Shakespeare, Hamlet Act III, Scene 4, lines 225-232 (Hamlet’s Speech in the Closet Scene referring to his setting up Rosenkrantz and Guildenstern to be executed upon arrival in England).


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