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Prof. Finkelstein supports NY County’s issuance of subpoenas for Trump’s personal financial records in amicus brief to the U.S. Supreme Court

March 26, 2020

The University of Pennsylvania Carey Law School Professor Claire Finkelstein has co-authored an amicus brief with Richard Painter of the University of Minnesota Law School filed in the U.S. Supreme Court supporting New York County District Attorney’s issuance of subpoenas to President Donald J. Trump’s accounting firms for his financial records as part of a state criminal investigation of the president’s businesses.

Finkelstein is the Law School’s Algernon Biddle Professor of Law and Professor of Philosophy as well as the Founder and Faculty Director of the Law School’s Center for Ethics and the Rule of Law (CERL).

Painter, also chief White House ethics lawyer in the George W. Bush administration, was counsel of record and filed the brief on behalf of Professor Finkelstein and the Center for Ethics and the Rule of Law. Finkelstein and Painter co-authored the brief in Trump v. Vance, potentially the most important executive power and immunity case to be decided since U.S. v. Nixon and Clinton v. Jones, with the assistance of two of Professor Finkelstein’s national security law students.

In the brief, the authors argue that the U.S. Solicitor General’s position in its amicus brief that Article II of the U.S. Constitution provides absolute immunity is not only incorrect but also would create dangerous precedent and erode the rule of law.

“Such a claim of presidential immunity threatens to eliminate all accountability, not just for this president, but for all future presidents,” said Finkelstein. “If the Supreme Court adopts the Solicitor General’s interpretation, anyone occupying the office of the president would be beyond the reach of state and federal judicial processes.”

In Trump v. Vance, District Attorney Cyrus Vance is investigating New York City-headquartered businesses beneficially owned by Trump. Vance subpoenaed several accounting firms for financial documents, including tax returns, of the businesses. The Second Circuit Court of Appeals refused to block the subpoenas, and Trump petitioned the U.S. Supreme Court to review the lower courts’ orders.

The amicus brief’s first section questions the involvement of the Solicitor General at all in this matter, noting that generally the Solicitor General submits amicus briefs to the Supreme Court in cases in which the United States has an interest. As the subpoeanas in Trump v. Vance are directed to third parties “on a matter that does not relate to the President’s duties to the country,” Finkelstein and Painter write, “this is not a case in which the United States could reasonably said to have an interest, much less a substantial interest.”

Next the authors explain why Article II does not provide absolute immunity to the president, tracing its history from the Framers’ intent through to more recent court decisions, including U.S. v. Nixon and Clinton v. Jones, “both of which stand for the precise opposite proposition than that which the Solicitor General is trying to argue here.” These two cases, write Finkelstein and Painter, “hold that a sitting president is not immune to judicial process.”

The amicus brief further argues that the Tenth Amendment protects the right of states to investigate and prosecute crimes within their jurisdiction and that it is inappropriate for the president to assert immunity with regard to state criminal law processes conducted against third parties.

“If the present assertion of absolute immunity is allowed to stand,” the authors write, “Trump’s entire corporate empire will be entitled to the expansive powers and immunities of the President.”

In the amicus brief’s final section, rebutting the claim that the investigation will impair the president’s performance of official duties, the authors turn to Justice Antonin Scalia’s remarks in oral argument in Clinton v. Jones: “… if and when a President has the intestinal fortitude to say, ‘I am absolutely too busy’ – so that he’ll never be seen playing golf for the rest of his Administration [laughter] – if and when that happens, we can resolve the problem. But really, the notion that he doesn’t have a minute to spare is just not credible.”

The authors note that the subpoenas here are directed to a third party, which, in turns, means that “[a]uthorizing his accountants to release his financial records in response to the subpoena will take less of the president’s personal time than a single round of golf.”

In mid-March, the Supreme Court postponed oral arguments in several cases, including Trump v. Vance, amidst the Coronavirus (COVID-19) pandemic, making a time schedule on an eventual decision unclear.

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