By Atty. Emmanuel S. Tipon
— John G. Roberts’ (now Chief Justice) opening statement at his confirmation hearing before the Senate
“Judges are like umpires. Umpires don’t make the rules; they apply them… It’s my job to call balls and strikes, and not to pitch or bat.”
In Trump v. Vance, No. 19- 635, decided July 9, 2020, involving an action by President Trump in his personal capacity against Vance, the New York county district attorney and Mazars, his personal accounting firm, to enjoin the enforcement of a grand jury subpoena duces tecum for financial records relating to the President and his business, the Supreme Court, speaking through Chief Justice Roberts, said that “the public has a right to every man’s evidence,” and “every man” includes the President of the United States, and held that the President does not possess state immunity from a state criminal subpoena, but that the case should be remanded to the District Court where the President may raise constitutional and legal objections to the subpoena as appropriate. Justices Thomas and Alito dissented.
Speaker Nancy Pelosi was jubilant saying that even the President’s two appointees are saying that “no one is above the law.” Nancy, who is a nice person at heart and for whom we campaigned in her first successful run for congress in San Francisco, was referring to Justices Kavanaugh and Gorsuch who must have outraged the conservatives for having voted with the Chief Justice and the four liberal justices. Kavanaugh said in his concurring opinion: “In our system of government, as this Court has often said, no one is above the law. That principle applies, of course, to a President.”
The President did not claim that he was above the law. There was no justification for using a shibboleth whose origin is lost “in the mists of antiquity” to justify the issuance of a state (not federal) subpoena against the President.
Is it really true that no one is above the law?
“’No one is above the law’ – except members of Congress” according to an article by Pem Schaeffer in the Maine Wire July 12, 2020. The writer points out that under Article I, Section 6 of the Constitution “for any Speech or Debate in either House, (senators and representatives) shall not be questioned in any other Place.” In Doe v. McMillan, the Supreme Court held that the provision protects them even for reading stolen classified materials into a subcommittee’s public record.
The Speech and Debate Clause of the U.S. Constitution (Article I, Section 6) reads “… for any Speech or Debate in either House, (senators and representatives) shall not be questioned in any other Place.” In the 1973 ruling Doe v. McMillan, “… the (Supreme) Court has held that the clause protects such acts as voting, the conduct of committee hearings, the issuance and distribution of committee reports, the subpoenaing of information required in the course of congressional investigations, and even the reading of stolen classified materials into a subcommittee’s public record,” Senior U.S. District Judge James L. Buckley wrote in The Heritage Guide to the Constitution.
In other words, members of Congress cannot be held to account for any lies they tell as part of their official work, including that “no one is above the law.”
ATTY. TIPON has a Master of Laws degree from Yale Law School and a Bachelor of Laws degree from the University of the Philippines. He is co-author of the best-seller “Winning by Knowing Your Election Laws” published by Rex Publishing. He writes columns for Filipino-American newspapers and co-hosts “The Tipon Report,” Honolulu’s most witty and useful radio show. He practices law in Honolulu, Hawaii, focusing on immigration and other federal laws. Tel. 808-225-2645. E-mail: firstname.lastname@example.org