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No Court Has Ever Ruled That a President May Claim Immunity From Investigation

John Moscow and Adam Kaufmann
New York Law Journal
September 24, 2019

Donald Trump has filed suit asking a federal judge to issue an injunction barring the New York County grand jury from gathering evidence as to whether he—and his accomplices—committed crimes in Manhattan.  Although the United States Supreme Court has previously ruled that federal courts should not intervene in state criminal proceedings, Mr. Trump ignores clear law that goes to the essence of our federal structure under the Constitution.

Without getting into arcane discussions of federalism, the larger point is that the substance of Mr. Trump’s argument is awe-inspiring in its threat to our institutions. This issue is not about this particular president; rather it is about the rule of law.

Mr. Trump’s argument is that he may not be prosecuted–or even investigated–while he is president, for any crime whatever. In late January 2016, then-candidate Mr. Trump famously bragged that he could shoot someone on Fifth Avenue and not lose any support. Applying Mr. Trump’s current legal argument to his prior braggadocio, he would make it unlawful for New York not just to prosecute him but even to gather evidence relating to his supposed Fifth Avenue shooting.

First, it should be noted that the Constitution says nothing about presidential immunities under the law, state or federal. No court has ever ruled that a president may claim immunity from investigation and there are strong legal arguments against this view. For example, the Constitution gives certain limited immunity to members of Congress, but not to the president.

As the late Justice Antonin Scalia has urged, “The text is the law, and it is the text that must be observed.”  The text–the Constitution–provides no immunity to the president. Had the framers wanted to extend immunity to the president, they could have. But they did not.

Moreover, the lawsuit by Mr. Trump in federal court challenging a state grand jury investigation flies in the face of our federal system of governance, which reserves the state police power to the states themselves, free of interference by the federal judiciary. subscribers can click here to log in and read the full article.