Overview

Overview

A foundational principle of our democracy is that everyone — from an ordinary citizen to the president — must follow the law. The King of England, against whom the Founders rebelled, was above the law. It was considered beneath his dignity to subject him to legal process — for example, to allow him to be sued or to require him to give testimony in court. The Founders purposefully and carefully rejected this approach, and designed our constitutional system with a core principle in mind: the president is not a king. He, like every American, must obey the law. This is what makes our democracy a “government of laws, and not of men.”

Again and again during his time in office, President Trump and his representatives told state and federal courts, state and federal law enforcement, and Congress that the president is not subject to the laws that apply to every other American and that he can’t be held accountable. President Trump was playing a shell game: whenever one entity tried to hold him accountable, he insisted that only another entity could do so, but he then turned around and claimed that the second entity also has no power over him, either. When these arguments were taken together, it became clear that the Trump administration believed that no one can hold the president accountable for breaking the law.

President Trump attempted to claim the powers of a king by placing himself above the law. Read more about our theory in our Lawfare explainer, and see below for a detailed list of instances where Trump attempted to place the presidency above the law. 

Presidential Accountability Project:

• We collaborated with Republicans for the Rule of Law on the Presidential Accountability Project, and released ads online and on Fox & Friends. See some of our videos, including about President Trump’s claim of “total authority,” here.

Federal amicus practice:

• We represented 20 Republican legal experts, former officials, and former members of Congress in filing an amicus brief in Committee on the Judiciary v. McGahn in the D.C. Circuit. The brief used historical evidence to demonstrate that the Founders gave Congress and courts the power to compel the president (and by extension his aides) to comply with subpoenas.
• Urging the full court to rehear Committee on the Judiciary v. McGahn, we filed an amicus brief on behalf of 96 former Cabinet officials, members of Congress, and other high-ranking executive branch officials who were concerned that the court’s decision would eliminate congressional oversight and upset the careful checks and balances on which our Constitution depends. 
• And we represented 37 former Republican members of Congress, former officials from Republican administrations, and legal experts in filing an amicus brief in Trump v. Vance in the Supreme Court. The brief explained that the president, like all Americans, must follow the law — including complying with legitimate criminal investigations — and that the Constitution provides no support for the president’s claim to absolute immunity.

State amicus practice:

We represented law professors who filed an amicus brief 20 years ago in Clinton v. Jones in filing similar briefs in two key state court cases where President Trump claimed he was immune from investigation: Zervos v. Trump and N.Y. v. Trump (the Trump Foundation case).

How Trump’s Shell Game Worked

How Trump’s Shell Game Worked

One of this nation’s most important founding principles is that ours is “a government of laws, and not of men.” The Founders rejected the English model of a king who could do no wrong and stood above the law. Instead, they adopted a system under which every American—from an ordinary citizen to the president —must comply with the law. One recurring feature of the Trump presidency was the rejection of this founding principle. President Trump and his representatives repeatedly argued that he was not subject to the law—rather, it was subject to him.

This argument that the president is above the law took two related forms. First, President Trump claimed an “absolute right” to control federal law enforcement, including directing it against his perceived enemies and shielding his friends and allies (and even himself). Second, he contended that he could not be held accountable by anything or anyone.

Trump’s Impeachment Exemplified This Strategy

played a shell game with Congress, the courts, and the public. President Trump and his lawyers repeatedly resisted other traditional forms of presidential accountability and emphasized impeachment as the main check on presidential abuses of power. For example, when claiming complete immunity from criminal prosecution or investigation at both the federal and state level for both official and unofficial actions, President Trump argued that the proper check on his authority was Congress’s power to impeach. 

But when Congress moved to use its impeachment powers as a check on the president, President Trump then systematically attempted to undermine the impeachment power. First, he refused to provide evidence in response to congressional subpoenas or in any way cooperate with the impeachment inquiry, and claims that his advisors were absolutely immune from subpoena. Next, he claimed that impeachment would be improper when there was no “witness with actual knowledge” that could testify as to the president’s actions and that Congress should have gone to court to enforce its subpoenas. Next, when Congress did go to court, the Justice Department argued that the courts were powerless to intervene in an interbranch dispute and that the only remedy was the impeachment power.. Finally, in impeachment proceedings, President Trump’s lawyers argued that he could not be impeached for declining to respond to congressional subpoenas but instead only for “crime” or “crime-like” offenses, which, of course, elsewhere he also suggested he was incapable of doing when exercising his official powers because Article II gave him “the right to do whatever I want as president.” 

President Trump’s arguments — if accepted — would have dismantled the Constitution’s separation of powers. The impeachment power would have been left as the primary check on presidential power but it would be hollowed out by Congress’s inability to investigate whether the president had committed an impeachable offense. This is the result that President John Quincy Adams noted would make a “mockery” of the separation of powers. And when that gutting of the impeachment power was combined with President Trump’s view — outlined below — that he was accountable in no other forum, the result was an autocratic form of government where the president was entirely unaccountable to any law or any other branch of government. As a result, if President Trump’s arguments were accepted, the only remaining check on presidential power would have been an election in which the president could abuse his powers and break the law in order to gain an electoral advantage.

Instances of President Trump Claiming Immunity

The below list collects and documents examples of the presidential immunity claimed by President Trump — that is, immunity from accountability and oversight. Time and again, President Trump, his representatives, his personal lawyers, and lawyers for the government claimed that the president was immune from oversight, investigation, and inquiry.

Each example documented below, standing alone, might have seemed like a narrow or technical argument that did not go much beyond the positions taken by prior presidents. But taken together, a more alarming picture emerged from which two conclusions were drawn. First, President Trump and his lawyers did not believe that anyone — not Congress; not federal, state, and local law enforcement; not federal and state courts — could investigate his actions or hold him accountable. Second, President Trump and his lawyers were attempting to cover up the extreme nature of their arguments by engaging in a kind of shell game with federal courts and Congress.

Federal Amicus Practice

Federal Amicus Practice

Trump v. Vance: No One Is Above the Law

President Trump and his lawyers claimed that the president was immune from not just indictment and prosecution, but even routine document requests as part of a legitimate criminal investigation. It was part of his larger argument for absolute presidential immunity. But that’s not consistent with what the Founders thought about presidential immunity — and in fact, it is a radical departure from the fundamental founding principle that the law applies equally to every American. 

In response to this dangerous argument, 37 former Republican members of Congress, former officials in Republican administrations, and legal experts filed an amicus brief in the Supreme Court in Trump v. Vance. The brief argued that the president, like all Americans, must follow the law — including complying with legitimate criminal investigations. The brief included examples of numerous past presidents who answered interrogatories, sat for depositions, and otherwise gave evidence in criminal and civil cases.

Vance concerned a subpoena issued by a grand jury called by Manhattan District Attorney Cyrus Vance to accounting firm Mazars USA. The president intervened to assert a total immunity from investigations that so much as touch his affairs. The district court and Second Circuit ruled against him. 

In a 7-2 decision, the Supreme Court rejected the president’s argument that he is absolutely immune to investigation. The Court’s decision reads “Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.” The Court echoed many of the arguments in our amicus brief, and made absolutely clear that the president, like every American, is “subject to the law.” 

Petitioner’s merits brief is here; Respondent’s reply brief is here; the Supreme Court’s opinion is here.

State Amicus Practice

State Amicus Practice

President Trump’s lawyers have argued that the Constitution makes the president completely immune from being sued in state court even when the lawsuit concerns pre-office conduct. The president first made this argument in Zervos v. Trump, which concerned allegations that President Trump defamed a woman who accused him of groping her. He reprised the arguments in People of the State of New York v. Trump, which concerned allegations that the Trump Foundation violated New York charities law.

These arguments are wrong as a matter of constitutional law. In Clinton v. Jones, the Supreme Court made clear that presidential immunity only extends to the president’s official acts, not his unofficial conduct. Of course, President Trump could not take an official presidential act before assuming office.

Protect Democracy has filed amicus briefs in both of the aforementioned cases reiterating the argument made in Clinton v. Jones and arguing that the president should not be immune from suit in state court. This is the first time this argument has been litigated.

Zervos v. Trump Documents

• Ruling on Government’s Motion to Dismiss (filed Mar. 14, 2019)
• Amicus Brief (filed Sept. 19, 2017)

NY v. Trump Foundation Documents

• Court’s Decision in Motion to Dismiss (filed Nov. 23, 2018)
• Amicus Brief of Law Professors (filed Oct. 5, 2018)

Partnership with Republicans for the Rule of Law

Partnership with Republicans for the Rule of Law

As a part of Protect Democracy’s work pushing back on President Trump’s claims of total immunity from accountability, Protect Democracy and Republicans for the Rule of Law partnered on the Presidential Accountability Project to fight against arbitrary uses of presidential power and to uphold the laws of the constitution. This project aimed to expose the ways in which President Trump’s tactics endangered the very future of our democracy.

In an effort to explain why Trump’s tactics posed a threat, Protect Democracy and Republicans for the Rule of Law released ads and digital content aimed at exposing President Trump’s efforts to evade oversight and accountability. The ads ran on Fox & Friends, and received strong coverage including claiming the #1 trending story spot on Apple News, and features in The Hill and The Huffington Post.

See our ads below:

The videos have amassed over 500,000 combined views.

For more information on Republicans for the Rule of Law and the Presidential Accountability Project, please visit their website here. 

Committee on the Judiciary v. McGahn

Committee on the Judiciary v. McGahn: the Executive Branch Cannot Ignore Congressional Oversight

President Trump insisted that the president and his advisors, including former White House counsel Don McGahn, were immune from being compelled to provide documents and testimony to Congress or the courts. But that’s not consistent with our Founders’ vision of proper checks and balances. 

The historical evidence shows the Founders believed that (1) every person who is competent to give evidence may be subpoenaed; (2) the King is the only exception; and (3) a president is not a King. The president and his senior advisors were not — and have never been — immune from congressional subpoena. To the contrary, it has been Congress’s constitutional prerogative and responsibility, from the earliest days of the Republic, to exercise these oversight powers. Protect Democracy represented 20 Republican legal experts, former officials, and former members of Congress who laid out the compelling historical evidence in an amicus brief to the D.C. Circuit in Committee on the Judiciary v. McGahn.

On August 7, 2020, the full D.C. Circuit Court reversed an earlier decision by a divided panel — which held that courts don’t have the power to enforce congressional subpoenas to the executive branch — holding instead that Congress does have standing to challenge the executive branch’s refusal to comply with the subpoena.

The decision was not a final resolution of the case. However, it represented a strong affirmation of Congress’ right to subpoena executive branch officials in keeping with the oversight powers granted by the Constitution, and to enforce those subpoenas in court. As Protect Democracy explained in an amicus brief on behalf of a bipartisan group of 96 former Senators, Representatives, and executive branch officials, the panel’s ruling would have effectively destroyed Congress’s ability to get information from the executive branch, making it difficult for Congress to fulfill its constitutional responsibilities to conduct oversight of the executive branch and to hold the president accountable if he breaks the law or abuses his powers.

The Founders on Why Presidential Power is not Absolute

The Founders on Why Presidential Power is not Absolute

Below are links to historical documents and relevant research that shows the Founders believed 1) that every person who is competent to give evidence can be subpoenaed, and 2) that kings are the only exception, and 3) that a president is not a king. These sources and more were cited in our McGahn amicus brief.

1. Baron de Montesquieu, The Spirit of Laws 188 (10th Ed. S. Crowder, C. Ware, and T. Payne, London 1773)
2. Tench Coxe, An American Citizen, On the Federal Government I, II, III, Independent Gazetteer (Sept. 26–29, 1787)
3. Annals of Cong. 493 (1792)
4. Letter from George Washington, President, to the U.S. House of Reps. (Mar. 30, 1796)
5. Letter from Charles Lee, U.S. Att’y Gen., to George Washington, President (Mar. 26, 1796)
6. Letter from James McHenry, U.S. Sec’y of War, to George Washington (Mar. 26, 1796)
7. Thomas Cooper, An Account of the Trial of Thomas Cooper 10 (1800)
8. Documents, Accompanying the Report of the Committee Appointed to Enquire into the Official Conduct of Samuel Chase and Richard Peters, Telegraphe and Daily Advertiser (Apr. 9, 1804) at 2
9. United States v. Burr, 25 F. Cas. 30 (C.C.D. Va. 1807) (No. 14692D) (Marshall, C.J.)
10. President James Monroe to George M. Dallas, Feb. 14, 1818, Records of the Office of the Judge Advocate General (Navy), Record Group 125, (Records of General Courts Martial and Courts of Inquiry, Microcopy M-272, case 282), National Archives Building
11. Cong. Globe, 27th Cong., 2d Sess. 580 (1842)
12. H.R. Rep. No. 271 at 1–18 (27th Cong., 3d Sess., 1843)
13. H.R. Rep. No. 684 at 4 (29th Cong., 1st Sess., 1846)
14. Richard Hildreth, The History of the United States of America 486-89, 584-85 (New York, Harper & Brothers Publishers 1856)
15. A Compilation of the Messages and Papers of the Presidents 1789–1897 at 2284 (James D. Richardson ed.1896)
16. James Wilson, On the Legislative Authority of the British Parliament, in 2 The Works of James Wilson 505, 520 (Chicago, Callaghan & Co. ed. James DeWitt Andrews 1896)
17. The Writings of Thomas Jefferson Volume IX 1807–1815 64 (Paul Leicester Ford ed.) (1898)
18. Irwin S. Rhodes, What Really Happened to the Jefferson Subpoenas, 60 A.B.A. J. 52, 53 (1974)
19. Select Comm. on Pres. Campaign Activities, Appendix to the Hearings of the Select Comm. on Pres. Campaign Activities of the U.S. Sen.: Documents Related to the Select Comm. Hearings, Pt. I, at 740 (1974)
20. James K. Polk, 1845–49, Cent. Intelligence Agency (Mar. 19, 2007)
21. Louis Fisher, Jefferson and the Burr Conspiracy: Executive Power Against the Law, 45 Presidential Studies Q. 157, 169 (2015)