The United States, Toward Presidentialism

As president, Donald Trump is increasingly reluctant to allow public scrutiny of his accounts.

Are U.S. presidents subject to laws like the rest of the population, or does their position put them above the law?

Three years ago, you would undoubtedly have said no.

But now …

Criminal law, say Trump’s lawyers, is for ordinary Americans.

“The president is not to be treated as an ordinary citizen,” Jay Sekulow, Trump’s lawyer, argued before the Supreme Court. And, because of that, he added, “Criminal process targeting the president is a violation of the Constitution.”

The case is simple. Trump is trying to block compliance with subpoenas from the Manhattan District Attorney and the U.S. House of Representatives which seek to examine his personal financial records and records from The Trump Organization, which are being held by the accounting firm and bank he used before he was president.

They relate to three separate cases that have been consolidated. In two of the cases, committees from the House, which is controlled by the Democratic Party, have asked that Trump’s private banks hand over his financial records, including his tax returns. In the third case, the Manhattan District Attorney served a grand jury subpoena on one of Trump’s financial firms as part of a criminal investigation into illegal payments made to two women Trump allegedly had sexual relationships with.

Although he wasn’t sued personally, Trump has tried to block the banks and financial firms from complying with the subpoenas.

Not that this was anything new. For years, beginning when he was a real estate businessman in New York, Trump has tried to avoid disclosing anything about his sprawling web of financial interests, in part, some say, because he is a lot less wealthy than you would think.

And now as president, he is increasingly reluctant to allow public scrutiny of his financial accounts, even less so since he is in the middle of an election year seeking a second term, and the people demanding his returns are his rivals, the Democrats.

The fundamental defense of the president and his lawyers is that the president cannot be investigated and tried in court while he’s in office. In other words, he has almost complete immunity.

A decision is expected by this summer, and it is likely to be a split decision by the Supreme Court, because not giving Trump the absolute immunity he is demanding means he is bound to question the political motives of the plaintiffs.

Whatever happens, it could have a considerable impact in a country that was founded on a strong legislative system, an independent judiciary, and an executive branch with relatively ambiguous responsibilities and rights, strengthened over the years at the expense of the others by the growth of the administrative apparatus and national security issues that were inconceivable 225 years ago.

Trump may not get what he wants, but presidentialism is on the rise.