Eighteen Supreme Court justices vs. Rudy Giuliani
By Jennifer Rubin May 7 at 12:15 PM
Eight justices ruled in United States v. Nixon that Richard Nixon had to turn over the Oval Office tapes during the Watergate scandal. (“Neither the doctrine of separation of powers,” wrote the court, “nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”) None of those justices were still on the Supreme Court in 1997 when the court ruled 9-0 in Clinton v. Jones that President Bill Clinton could not avoid Paula Jones’s civil suit (nor the deposition it entailed) while in office. Independent counsel Kenneth W. Starr later issued a subpoena for Clinton to testify; Clinton thereupon submitted to an interview. Four of the justices who held for Jones — Justices Anthony M. Kennedy, Clarence Thomas, Ruth Bader Ginsburg and Stephen G. Breyer — remain on the court today. Recall also that Chief Justice John Marshall held that President Thomas Jefferson would have to submit to a subpoena duces tecum to appear in the Aaron Burr trial.
In other words, 18 justices, four of whom remain on the court, have ruled in one form or another that presidents are not above the law or immune to ordinary legal processes. No president has prevailed in the argument that he and documents in his control are exempt from a subpoena. Recently in the Summer Zervos case, a New York state judge, citing Jones, held that President Trump was not immune from that defamation suit. He therefore will be compelled to sit for a deposition if the case proceeds.
As for the remaining five justices on the court, we find it impossible to believe all would rule in Trump’s favor if he tried to evade a subpoena to testify. To the contrary, Chief Justice John G. Roberts Jr. (a court institutionalist) and Justices Sonia Sotomayor and Elena Kagan almost certainly would rule against Trump. Especially in light of Trump’s constant assaults on the legitimacy of the courts, justices would be exceptionally mindful of their role in checking the executive branch and preserving the rule of law.
Given that four of the current justices held that Clinton could be compelled to testify in a civil suit (of much less consequence than a criminal case), it defies logic to think those four justices would shield Trump from a subpoena in a far-reaching criminal case. How could it be that in relatively small matters of civil liability (Jones, Zervos) that a president could be compelled to attend a deposition, but in a criminal matter Trump could thumb his nose at the special counsel?
more
https://www.washingtonpost.com/blogs/right-turn/wp/2018/05/07/eighteen-supreme-court-justices-vs-rudy-giuliani/
