Well, we can kick this around all we like here in the sandbox.
Here's how it has been argued it in the Supreme Court on May 12th:
"Justice Kagan to Petitioner (16:55): So, Mr. Sekulow, you've said that a number of times and made the point, which we have made, that presidents can't be treated just like an ordinary citizen. But it's also true and, indeed, a fundamental precept of our constitutional order that a president isn't above the law. . . . [W]hy isn't the way to deal with these two things, (that the President is special but that the President is like an ordinary citizen in that he's subject to law), is to say the President can make these usual objections that a subpoena recipient can make about harassment or about burden, and the courts in reviewing those, of course, should take seriously the President's objections and treat those with a certain kind of sensitivity and respect due to somebody who is a branch of government. Why isn't that the right way to do it?
Michael Gerhardt: Your Honor, the President should not be treated like an ordinary citizen because he is not. This is especially true with respect to a criminal proceeding. True, Clinton v. Jones says that in civil cases based on pre-presidential misconduct a president is not entitled to any immunity, but in criminal cases the potential for distraction and interference with the President’s doing his job are acute. Presidents may well be like ordinary citizens in that they will fear for their lives and their freedom when confronted with possible criminal charges, but their understandable fear is bound to interfere with their duties – and their preeminent need to be focused on those duties in times of crisis.
Justice Sotomayor to Respondent (1:33:46): I'm not sure that I understood your statement earlier that the only difference between you and the SG -- well, there are two differences, one in the articulation of special needs or heightened standard, but you said it's the burden of proof. But you've already conceded to -- to one of my colleagues that there's an automatic burden on an article -- on the Article II clause by subpoenaing a sitting president, period. . . . What then are you conceding when you say there's a burden? . . . And -- and what kind of burden are you talking about? And, number three, articulate more precisely what problems you have with the heightened standard that Nixon set in its grand jury subpoena.
Michael Gerhardt : Your Honor, I am sorry for any confusion. Briefly, the Solicitor General is trying to apply to this case standards designed to ensure proper consideration of any presidential claims of executive privilege, but there are none here. Therefore, it is inappropriate, we submit, for those standards to be used here. Our concern is that the heightened scrutiny used for Nixon was used in order to protect rightful claims of executive privilege, but here
we urge the Court not to allow Mr. Trump to use the presidency as a shield on matters that are unofficial and personal. We ask the Court to follow the same methodology here as it used in the Clinton v. Jones case, a balancing test that takes into account the need for the information and any personal inconvenience caused to the President, such as interference with meetings with foreign leaders. In applying that balancing test in this case, the Court should place the burden of persuasion on the President because he is resisting the subpoena. He must therefore be the one to show why, on balance, he has great needs for privacy here. We do not believe that unsupported claims of inconvenience should shield Mr. Trump from complying with a lawful subpoena. I conclude, your Honor, reminding this Court that
our framers rebelled against a king who indeed killed people and engaged in criminal conduct with impunity; the Constitution was not designed to allow a president to act with impunity under any conditions. To the contrary, the Constitution was designed to allow for checking a president, and the checks here, your Honor, are especially important because they have to do with the President’s personal, pre-presidential conduct. Giving Mr. Sekulow and General Francisco what they are requesting on matters that have nothing to do with the presidency places the President above the law."
Current Supreme Court Case Trump v Vance On This Very Matter.
Arguments have been heard. Decision is forthcoming. It could be announced any day...
