Bloomberg Law
July 17, 2020, 8:01 AM

INSIGHT: Trump’s Unitary Executive Theory Meets Cyrus Vance on Fifth Avenue

Claire O. Finkelstein
Claire O. Finkelstein
University of Pennsylvania Carey Law School
Richard W. Painter
Richard W. Painter
University of Minnesota Law School

On July 9, the U.S. Supreme Court sent President Trump a powerful message in Trump v. Vance: No president is above the law, and you are as subject to the criminal justice system as any ordinary person.

In an opinion authored by Chief Justice John Roberts, the justices unanimously rejected the proposition that a sitting president can use his powers under Article II of the Constitution to assert immunity from criminal investigation. The majority opinion even rejected the compromise proposition that prosecutors should make a heightened showing of need before issuing a subpoena to the president.

In Mazars, a case decided alongside Vance, the court rejected the president’s assertion of immunity from congressional subpoenas for the same financial records. It also rejected imposing the “special needs” standard and affirmed that the congressional subpoena power is “an essential and appropriate auxiliary to the legislative function,” characterizing it as “broad” and “indispensable.”

The court found that Congress had not adequately identified the legislative purpose it had in demanding Trump’s personal financial records. But the basic principle is fully consistent with the holding in Vance: The president’s finances are subject to subpoena.

The no-immunity principle follows seamlessly from Jones v. Clinton, which established that the president can be sued civilly for private conduct before he took office, and U.S. v. Nixon, which established that the president must turn over White House records subpoenaed by a special prosecutor.

Given these prior cases, one might have thought Trump’s lawyers would have known better than to bring this lawsuit. But the hubris of their position became particularly clear in the nightmarish scene that played out in the Second Circuit oral arguments in the Vance case in which Trump’s lawyers actually argued that the president could shoot someone on Fifth Avenue without being either investigated or indicted until after he had left office.

Legal Fiction: The Theory of ‘Unitary Executive’

What induced Trump’s lawyers to make such a preposterous argument? The answer lies in a legal fiction, found nowhere in the Constitution and benefiting from scant support from our constitutional or intellectual history, the theory of the “unitary executive.”

Although originally a defensible thesis about the president’s power to remove upper level executive branch officials, the unitary executive theory has been distorted by executive branch lawyers to justify presidential conduct of questionable legality. It became the go-to theory anytime a president wanted a legal basis for defying Congress, the courts, or international law.

It was used to argue, for example, in favor of the legality of the Vietnam War, even though the war had not been fully authorized by Congress. It was used during the Bush administration to justify torture in violation of both federal and international law. More recently, it was used as a basis to override congressional refusal to appropriate funds for a wall along the Southern Border.

President Trump has mastered the art of the unitary executive beyond anything his predecessors could have imagined. As he once put it, “I have an Article II, I have the right to do whatever I want as president.”

He has used unitary executive theory to pressure former executive branch officials to defy congressional subpoenas in an impeachment hearing, where Congress’ powers are at their zenith.

Similarly, he has invoked the theory to justify removing numerous executive branch officials conducting legitimate investigations into his own activity, an abuse of the removal power designed to obstruct justice. The body count to date includes James Comey, the former director of the FBI, a string of inspectors general charged with reviewing executive branch action, and Geoffrey Berman, the former U.S. Attorney for the Southern District of New York, who was investigating the president for criminal wrongdoing, among others.

CFPB Decision Extolled Breadth of Presidential Power

In reminding the president of the no-immunity principle, the Supreme Court was pushing back on the unitary executive theory. Has Vance dealt that theory a mortal blow? Unfortunately, we cannot yet conclude as much.

Two weeks before Trump v. Vance was decided, the Supreme Court decided another case, Seila Law LLC v CFPB. The latter makes the Vance case look like the Supreme Court’s return to Dr. Jekyll from an excursion as Mr. Hyde.

In CFPB, Roberts, writing for a 5-4 majority, extolled the breadth of presidential power under Article II, and seemingly embraced the unitary executive theory to hold that the president must have unfettered discretion to remove senior officials.

The court struck down a congressional statute limiting the president’s power to fire the director of the Consumer Financial Protection Bureau.

CFPB may sound like a generalized defense of the unitary executive theory, but it is not. CFPB should be understood as a constraint on the power of Congress to restrict the president’s removal powers. It is not an expansion of the president’s Article II authority or a license for him to violate generally applicable laws, such as federal obstruction of justice laws

Generally applicable laws apply to the president as they do to everyone else, and nothing in Article II overrides that. Criminal acts for other government officers and for ordinary citizens—ignoring a criminal subpoena, bribery, obstruction of justice, witness tampering and yes, even torture—remain crimes, even when committed or ordered by the president.

Cyrus Vance did not go to Fifth Avenue for a shoot-out with President Trump. But Vance’s challenge to Trump was important, not just because of this particular New York criminal investigation, but for the rule of law in America. Thanks to Vance’s legal battle with President Trump, the Supreme Court has reiterated the fundamental principle that no man, not even a president, is above the law.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

Author Information

Claire O. Finkelstein is the Algernon Biddle professor of law and professor of philosophy at the University of Pennsylvania, where she is the faculty director of the Center for Ethics and the Rule of Law.

Richard W. Painter is a professor at the University of Minnesota Law School and was the chief White House ethics lawyer under President George W. Bush. He is the author (with Peter Golenbock) of American Nero: The History of the Destruction of the Rule of Law, and Why Trump Is the Worst Offender.