Trump Subpoenas
July 9, 2020 – Part 2 😅
Today the Supreme Court decided two cases about subpoenas seeking President Trump’s financial information (including tax returns). The first case (Trump v. Vance) concerned a subpoena from the Manhattan District Attorney’s Office related to an ongoing criminal investigation. The second case (Trump v. Mazars) concerned subpoenas from Congress that were issued pursuant to its legislative and oversight responsibilities. I won’t give a comprehensive analysis of these cases, but instead I’ll offer some key take-aways and questions for you to ponder. 😉
In Vance, President Trump had argued that he should be categorically ("absolutely") immune from having to respond to a state criminal subpoena. *All nine Justices disagreed.* Or to put it another way: All nine Justices unanimously agreed that the President is subject to state criminal subpoenas. So, while this decision was not unanimous in every respect, it was unanimous on this very important question.
In Mazars, basically every member of the Court was frustrated by the behavior of both President Trump and Congress. You can almost picture the Chief Justice pulling his hair out while writing the majority opinion. After summarizing over 200 years of relevant legal history, he points out that the Supreme Court has never had to resolve this type of dispute before: “Congress and the President have maintained [a] tradition of negotiation and compromise – without the involvement of this Court – until the present dispute.” Translation: Yikes! 😬
A big theme in both cases is the nature of “the Presidency.” As a constitutional matter, the Presidency should not be defined by the attributes of any individual who happens to hold that office at a given time. In both Vance and Mazars, the Justices are trying to craft opinions that give due consideration to important interests of “the Presidency” – interests that will outlast "this particular Presidency."
Following up on that, I think a helpful exercise is to take one of the principles in the opinions and ask yourself: Would I want this principle to apply to a President that I really like? Would I want this principle to apply to a President that I really dislike?
For example, dissenting in Vance, Justice Alito wrote: “Never before has a local prosecutor subpoenaed the records of a sitting President. The Court’s decision threatens to impair the functioning of the Presidency and provides no real protection against the use of the subpoena power by the Nation’s 2,300+ local prosecutors.”
If you picture your ideal President, and then imagine her or him potentially being subject to thousands of local prosecutors’ subpoenas, it’s not a great thought, right? Now, I’m not saying that Justice Alito’s dissent as a whole is persuasive – but it provides a decent thought experiment. Ideally, we want the Supreme Court to establish fair standards that will apply evenhandedly to all future Presidents, whether we personally happen to like them or not.
So what’s next?
Well, in Vance, the case will be sent back to the district court and President Trump will have an opportunity to object to specific aspects of the subpoena. For example, he might argue that complying with certain parts of the subpoena would interfere with his constitutional duties. The district court could then modify or narrow the subpoena. But, in all likelihood, President Trump will ultimately have to produce at least some of the financial information that has been requested. He is not categorically immune from the subpoena.
In Mazars, the case will also be sent back to a lower court for further proceedings, and President Trump will have a “duty” to cooperate. The lower court will have to take a “balanced approach” to determine whether the subpoena requests are related to legitimate Congressional tasks. Key questions for the lower court include:
Besides the President, could other sources provide Congress with the information it needs to carry out its legislative objectives?
Is the scope of the subpoena “no broader than reasonably necessary”?
Can Congress adequately identify a “valid legislative purpose” and explain how the President’s information would factor into that purpose?
What particular burdens does the subpoena impose on the President?
* * *
Bottom line: these are both big, fascinating, historic cases. There is (surprising?) agreement among many of the Justices on important issues, and I don’t think the outcomes can be chalked up to partisanship. That’s a good thing for America. 🇺🇸⚖️