Prosecution of the President of the United States by H. Lowell Brown

Author:H. Lowell Brown
Language: eng
Format: epub
ISBN: 9783030813734
Publisher: Springer International Publishing

The United States Court of Appeals for the Second Circuit

President Trump appealed Judge Marrero’s decision to the United States Court of Appeals for the Second Circuit, which on November 6, 2019, issued an opinion affirming what the circuit court described as the district court’s “thorough and thoughtful decision and order,” denying the injunction.10 With respect to Trump’s claim of absolute presidential immunity as a bar to enforcement of the subpoena, the court of appeals ruled that “presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged matter, even when the subject matter under investigation pertains to the President.”11

It was the court’s judgment that in view of the “long-settled proposition that the President is subject to judicial process in appropriate circumstances,” and the precedent of United States v. Nixon, Judge Marrero had not erred in denying Trump’s requested injunction. The court noted particularly that the subpoena had sought non-privileged material from a third party that did not concern actions taken by Trump in an official capacity relating to his official duties, but rather related to his business as a private citizen. Thus, the court concluded, “We find no support in the Nixon Court’s conclusion … for the proposition that a President’s private and non-privileged documents may be absolutely shielded from judicial scrutiny.” As to the Nixon ruling, the court observed that “tellingly,” although along with his claim of executive privilege, Nixon had asserted a claim of presidential immunity as a bar to enforcement of the grand jury’s subpoena, as Trump had, the Supreme Court “felt it unnecessary to devote extended discussion” to the immunity argument, which in the court’s view, “strongly suggests that the President may not resist compliance with an otherwise valid subpoena for private non-privileged materials simply because he is President.”12

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