Trump’s critics chopped down another tree in the forest of laws and legal norms to pursue their devil, but to the harm of future presidents and the country.
And think of the future possibilities for political theater. If a state DA can subpoena presidents, he theoretically can arrest and fingerprint them, bring them before a court for arraignment, detain them until posting bail, and even place travel restrictions on them. He could even conduct a trial where the president would have to appear for all proceedings for weeks. A Republican DA not only could charge Hunter Biden for his sleazy business dealings, he could investigate President Biden himself as a co-conspirator.
It is not just the president who would suffer, but the American people. As Justice Thomas wrote in his dissent in Trump v. Vance: “The President has vast responsibilities both abroad and at home,” such as protecting the national security, conducting foreign policy, and executing federal law. In order to give the nation the benefit of “energy in the executive,” the Founders made the conscious choice to vest these many responsibilities in a single individual who could act with “decision, activity, secrecy, and dispatch,” as Alexander Hamilton argued in Federalist No. 70. The investigation will consume the time, energies, and resources that the president should devote to carrying out his constitutional and political duties and advancing the agenda upon which the American people elected him. As Thomas Jefferson had argued when served with a subpoena in the Aaron Burr treason trial, the president’s “duties as chief magistrate demand his whole time for national objects,” rather than racing from one end of the nation to the other to defend himself in court. Even if the president were not immune from state criminal investigation, the Supreme Court should have required — as Justices Thomas and Alito urged — that state proceedings wait on hold until Trump had finished his term in office.