Trump likely to be acquitted by Republican Senate. How that sends a dangerous message

Is our country on the verge of making the president of the United States above the law? The United States Senate’s virtually certain acquittal of President Trump will send a message to future presidents that they, and those around them, need not comply with congressional subpoenas and need not fear removal so long as their party sticks with them.

The Supreme Court has granted review in three cases, to be heard in the spring of 2020, that could give presidents the ability to thwart Congress from obtaining information about them, including information about criminal activity that occurred prior to taking office.

A central aspect of the rule of law is that no one, not even the president, is above the law. But 2020 may be a turning point in American history if Senate Republicans and the Supreme Court reject this principle and dramatically undermine checks and balances that have existed since the Constitution’s adoption.

Prior presidents facing impeachment – Andrew Johnson, Richard Nixon and Bill Clinton – all cooperated with congressional investigations. But Donald Trump has taken the opposite approach, instructing aides to defy subpoenas, refuse to testify and withhold documents. Indeed, the second article of impeachment approved by the House of Representatives focuses on this obstruction.

The Senate’s acquittal of Trump will mean that future presidents will know that there are no consequences to following this approach unless the president’s party abandons him or her. Without bipartisan support, which in our increasingly politically polarized times seems unlikely, no president will have two-thirds of the Senate vote for removal.

I fear this will embolden presidents in the future because they will know that the checks of congressional investigations and removal from office are toothless. At the same time, the Supreme Court will consider in 2020 whether to accord the president broad immunity from investigations by the courts while in office.

On Dec. 13, the Supreme Court granted review in three cases where lower courts upheld subpoenas concerning President Trump’s financial records. President Trump is asserting broad immunity from investigation and the legal process.

The issue in Trump v. Vance is a state court grand jury subpoena for eight years of Trump’s business and personal records in connection with an investigation of hush money that was paid during the 2016 campaign to Stormy Daniels and Karen McDougal. Trump sued in federal court to keep his accounting firm, Mazars USA, from turning over the financial records. The federal district court ruled against him and the United States Court of Appeals for the Second Circuit affirmed.

A second case, Trump v. Mazars USA, involves a subpoena by the House Oversight and Reform Committee, which is investigating the hush money payments, Trump’s financial involvement with Russian companies and the accuracy of financial statements he made to obtain loans and reduce taxes. The federal district court ruled against Trump, and the United States Court of Appeals for the District of Columbia Circuit affirmed it. The appellate court concluded that the “subpoena issued by the committee to Mazars is valid and enforceable.”

The final case, Trump v. Deutsche Bank AG, involves subpoenas from the House Financial Services and Intelligence Committees that were directed at two financial institutions that did business with Trump, Deutsche Bank and Capital One. Once more, Trump went to court to block the subpoenas but lost in both the district court and the Second Circuit.

Ultimately, President Trump is claiming that he, and all with whom he does business, are immune from all subpoenas. The Supreme Court unanimously rejected that proposition in United States v. Nixon in 1974. The Watergate special prosecutor subpoenaed tapes of White House conversations to use in the prosecution of those who had been involved in the Watergate cover-up. President Nixon claimed that executive privilege protected these tapes from disclosure and that the courts could not enforce a subpoena against the president.

The Court, in an opinion by Chief Justice Warren Burger, explicitly rejected these arguments and held that Nixon had to comply with the subpoenas. Nixon then produced the tapes and they clearly showed that he had engaged in obstruction of justice. Just days after the release of the tapes, Nixon resigned.

My fear, though, is that the conservatives on the Roberts court have shown little inclination to stand up to President Trump and could split 5-4 along party lines and rule in favor of him. This would be a serious blow to the Court, which would appear to be just another political body.

Even worse, together with the Senate’s acquittal of President Trump, it would mean that there will not be meaningful congressional or judicial checks on the president. If that happens, 2020 will be a frightening turning point for our constitutional democracy and for the rule of law in the United States.