(Bill Chizek/iStock/Getty Images Plus)A New York prosecutor may pursue the president’s financial information. Congress, though, must relitigate its case in lower courts.
The Supreme Court’s decisions Thursday on two separate cases involving subpoenas for the president’s personal financial information are legal defeats for the presidency. Politically, they are a win for Donald Trump.
Both opinions were authored by Chief Justice John Roberts and were ostensibly resounding 7–2 defeats for the president’s position. But there’s less here than meets the eye.
The State Grand Jury Subpoena
One case involves a subpoena issued by a New York state grand jury conducting a criminal investigation led by the office of Cyrus Vance, the Manhattan district attorney. That investigation is believed to be focused, at least in part, on the payment of hush money to women who claim to have had liaisons with Donald Trump about a decade before he became president, including how the reimbursement for those payments was allegedly booked by the Trump real-estate organization. The subpoena, issued to Trump’s longtime accounting firm, Mazars, is believed to be sweeping, seeking voluminous financial information (including tax-return information), over a number of years.
The Court’s ruling against the president is emphatic. It was expected that the president would lose. This seemed obvious during the oral argument, when the Court focused intently on the fact that, while the president was making a broad immunity claim, he was not arguing that he had immunity from being investigated; just that he had immunity from complying with subpoenas — indeed, subpoenas addressed to a third-party agent of his, not to the president himself.
This was an untenable position. Logically, it was foreclosed by Clinton v. Jones, in which the Court permitted Paula Jones’s civil sexual-harassment suit to proceed against President Clinton, including discovery. Moreover, as Chief Justice Roberts recounts in his opinion, it has been the law of the United States since the 1807 Aaron Burr treason trial that a president — Thomas Jefferson, in that case — may be subpoenaed in a criminal investigation. The Court observes that presidents from Monroe to Clinton have all accepted this ruling by the iconic John Marshall (then the circuit justice for Virginia, later the most consequential Supreme Court chief justice in American history).
While few expected that the justices would be hospitable on the broad immunity claim by President Trump’s personal counsel, they did seem more sympathetic during oral argument to the middle position staked out by the Trump Justice Department. The solicitor general had proposed that the state prosecutor be required to show a heightened need for production of evidence or testimony by a president — a demonstration that there was some objective basis for the investigation, and a reasonable probability that the subpoena would lead to relevant information.
In the end, however, the Court rejected this gambit, too. Roberts, joined by all justices except the dissenting Justices Clarence Thomas and Samuel Alito, concluded that the president enjoys plenty of protections already. State grand juries may not engage in “arbitrary fishing expeditions.” If there is evidence they are acting in bad faith, the president may seek intervention by the federal courts. Moreover, the Constitution’s supremacy clause has been construed to prohibit state officials from interfering in the president’s official duties, attempting to pressure the president into policy decisions, or retaliating against a president for his official acts. Thus, along with the due-process protections available to all citizens, the president, again, has the prerogative of seeking intervention by the federal court if state prosecutors or judges act abusively.
The justices deemed it unnecessary to craft additional safeguards.
The Congressional Subpoenas
The other case involved subpoenas issued by three Democrat-controlled committees that were part of the House impeachment effort, though the subpoenas were not directly (or at least explicitly) part of the impeachment investigation. The Oversight and Reform Committee subpoenaed financial records (including tax returns) from Mazars for its investigation of adequacy-of-government ethics laws. The Financial Services Committee and Intelligence Committees subpoenaed financial records from Deutsche Bank and Capital One, two big lenders to Trump’s business empire, for their investigation into foreign influence in American elections.
Or at least, these were the stated rationales for the information demand. In reality, of course, Democrats have been screaming for Donald Trump’s tax information even since the 2016 campaign, during which he first agreed to produce it, then reneged.
Consequently, the issue, depending on your perspective, is whether Congress is abusing its nigh-unlimited power to gather information for purposes of legislation and oversight in order to achieve a political advantage; or whether the president is flouting legitimate congressional demands for information in order to stave off political embarrassment.
That is, it’s a political dispute between the political branches. Those are not generally the Court’s business. Thus did the justices marvel that they’d been asked to wade into such a dispute for the first time in 233 years of American constitutional governance.
That ought to be a clue.
As we noted many times during the impeachment kerfuffle, in which the House alleged that the president was obstructing its investigation, courts should and normally do stay out of such conflicts between the executive and the legislative branches. The Constitution mutually arms those political branches with several means of punishing the other for abuse and noncompliance. The result is that these conflicts are generally worked out by compromise and accommodation, not by lawsuits.
The Court was being asked to impose legal rules on political combat. The justices agreed to take up the challenge, but their ruling is not definitive, and it will lead to extensive litigation in the lower courts.
To summarize, the Court ruled that the lower courts, which had upheld the subpoenas as within Congress’s broad authority, were in error because they did not take account of the significant separation-of-powers concerns raised by the president. Nevertheless, the majority ruled that Congress was acting within its legitimate authority in seeking private information from the president. The question was one of balance — which, of course, is what the political disputes always come down to. The Court sent the cases involving the House subpoenas back to the lower courts, with instructions to do a better job sorting out the competing interests.
To be sure, neither the president in his personal capacity nor the Justice Department on behalf of the presidency claimed that the president’s personal financial information was covered by executive privilege (such a claim would have been frivolous). Nevertheless, it cannot be gainsaid that numerous, continuous, extensive demands for private information would palpably threaten a president’s capacity to carry out his unparalleled duties.
Hardly groundbreaking stuff: The Court acknowledged that the House has extensive information-gathering authority, but the president has a big job to do.
The majority did not give the lower courts exhaustive guidance about how to work that out. There are a few guidelines. For example, courts should ask whether Congress’s asserted legislative purpose really requires involving the president and his personal papers. Congress should not be permitted to burden the president if it can reasonably obtain the information it seeks from other sources. Courts should ask for subpoenas to be narrow. But the Court declined to tick off all the potential considerations, lamenting that “one case every two centuries does not afford enough experience” for that.
I phrased that last sentence intendedly. The Court seems ticked off to be dragged into this controversy. Thus the justices resolved it by kicking it to the lower courts. Between trying to apply the Court’s Delphic guidance and developing their own standards, those judges could take forever to resolve things.
In other words, we’re effectively at square one: a political dispute in which the political branches’ incentive should be to compromise, because the alternative possibility is a breakdown in cooperation, mutual damage, and even impeachment (again!). The not-so-subtle message is that the Supreme Court was not happy to be entangled in this, and not in any hurry to stick the federal judiciary’s neck out to resolve it.
President Trump argued in both cases that he had immunity from subpoena compliance, and the Court flatly rejected those claims. To the extent, moreover, that the Court recognized a legitimate congressional interest in the president’s personal papers, that is a setback for the presidency, though I doubt it is much of one. Few doubted that there are at least some instances when congressional demands for the president’s personal information would be justifiable. What stops Congress from being unreasonable in this regard are political rather than legal restraints — restraints that worked well for over two centuries before the Trump presidency.
As a practical matter, although these cases go down as legal losses for the presidency, the Court’s remand back to lower courts ensures that the wrangling will go on for months — until long after Election Day. That’s a big political win for the president.
The Trump legal team will undoubtedly go back to Manhattan federal court and argue that the district attorney is abusing his authority in ways that the Supreme Court hypothesized would be offensive and might call for federal-court intervention. When the congressional committees press their demands, the president’s counsel will go back to the D.C. district court (and, probably later, the D.C. Circuit Court of Appeals) and tell the judges that the Supreme Court says they must start all over because they failed in the earlier rounds to give due weight to the president’s constitutional interests.
In other words, President Trump’s personal financial information is not going to be an issue in the 2020 campaign. In fact, it will probably be even less of an issue than it was in the 2016 campaign, since the president can now say that the Supreme Court recognized the dangers of interference in his daunting duties . . . and hope that voters won’t care that he could release his financial information voluntarily, just as he could have four years ago.
For all the anticipation, the Supreme Court’s term ends with a whimper, not a bang.