SCOTUS Roundup | July 9, 2020
Part 1: Trump's Tax Returns
Two cases on this issue were decided today, with different results (which is not entirely surprising given the issues involved).
The first is Trump v. Mazars USA, LLC. This is a consolidation of three cases, all of which involve a House committee's subpoenas of various Trump and Trump-related financial records. These were issued by the House Committees: Finance, Permanent Select on Intelligence, and Oversight and Reform. The subpoenas were issued to various financial institutions, including Deutsche Bank and Capitol One, along with an accounting firm, Mazars USA. Trump intervened in his personal capacity, as did some of his family members and various business entities. They lost in two separate lower courts (the DC Circuit and the Second Circuit).
SCOTUS reverses in a decision written by Roberts and joined by everyone but Alito and Thomas. The decision explains the history of this kind of request, which also involves the development of Executive Privilege, and notes that “we have never considered a dispute over a congressional subpoena for the President’s records.” In the past, these kinds of disputes have been able to be sorted out by negotiations between the President and Congress.
It's this novelty that, in the majority's mind, demands a remand. Trump &co. argued that the rigorous standard that applies to Executive Privilege should also apply here, referencing United States v. Nixon. SCOTUS rejects this, because Trump didn't raise Executive Privilege in this case (and it's not clear that he could, given that everything sought is from his personal business, not in his capacity as president). To use this standard, the majority says, “would risk seriously impeding Congress in carrying out its responsibilities.”
But at the same time, the far broader standard argued by the House (and used by the lower courts) isn't better. Under that version, there would be no difference between this subpoena and any other Congressional subpoena to an individual. But, SCOTUS says, this goes too far the other way. As Chief Justice Roberts writes,
We would have to be “blind” not to see what “[a]ll others can see and understand”: that the subpoenas do not represent a run-of-the-mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved.
Ultimately, the lower courts did not adequately consider the issues involved. The majority then gives some specific factors that must be considered in evaluating this kind of subpoena:
Does the legislative purpose involved “warrant the significant step of involving the President and his papers”?
Any subpoena of the President as an individual should be as narrow as possible to achieve Congress' ends.
Courts must be sure that Congress has provided sufficient evidence that there is indeed a legislative purpose.
What is the burden on the President? A general use of his time and attention isn't enough to defeat a subpoena. Instead, this is more focused on making sure Congress isn't trying to totally bog the Executive down in paperwork, basically.
So the case is sent back to re-evaluate the subpoenas in light of the separation of powers concerns and those four factors.
Justice Thomas dissents, saying he doesn't think that Congress has the power to issue legislative subpoenas to a private individual, president or otherwise.
Justice Alito says that these kinds of subpoenas aren't categorically unconstitutional, but that there needs to be a lot more evidence that Congress is really doing this with legislative intent and not just to look into presidential malfeasance (which, both he and Thomas agree, could be done under the impeachment power).
The second related case is Trump v. Vance. This stems from the decision last year by the New York County DA to subpoena Mazars USA, the same accounting firm involved in the previous case, for records relating to Trump's private finances and business dealings. Trump intervened in federal court, trying to block the subpoena, but this request was denied.
SCOTUS upholds the denial. The majority is again by Roberts, joined by Ginsburg, Breyer, Sotomayor, and Kagan. Kavanaugh writes separately but concurs in the judgement, and is joined by Gorsuch. Thomas and Alito each dissent.
Trump has argued that a state subpoena violates the Supremacy Clause, which basically says that federal law is, well, supreme over that of the states. But this is not a particularly strong argument. First, John Marshall (serving as Circuit Justice for Virginia) granted a subpoena requested by Aaron Burr in 1807 to be served on Thomas Jefferson, who was president at that time. Every time this has come up since, it has been consistently found that a sitting president is not immune from subpoena.
Trump attempts to distinguish the present case because it involves a state court, not a federal one. His argument is that a state subpoena could interfere with his duties as president. But the prior cases (going back to the Burr one) have consistently said that a subpoena is not per se enough to interfere with presidential duties. Trump says that a state subpoena is unique, and that he as president should have absolute immunity. He makes three arguments on this point: diversion, stigma, and harassment.
For diversion, the Court says that immunity based on this has been rejected ever since it was first argued. There is valid concern about a subpoena affecting decisionmaking, but just the existence of one and the possible distraction by being involved in the process is not enough to make a subpoena invalid. Trump tries to claim that this time will somehow be worse because he himself is under investigation, but this fails because he's not trying to be immune from the distraction caused by possible future liability.
Next, Trump says that the “stigma” of being subpoenaed will undermine his leadership. SCOTUS doesn't have much to say about this one, just saying that,
even if a tarnished reputation were a cognizable impairment, there is nothing inherently stigmatizing about a President performing “the citizen's normal duty of ... furnishing information relevant” to a criminal investigation.
They also reject “risk of association” with people under investigation as a real harm, noting that “[p]rior Presidents have weathered these associations in federal cases,” and there's no reason to think a state one is somehow worse.
Finally, Trump says that allowing a president to be subject to a state subpoena makes them targets of harassment. But this was already tried by Clinton in his subpoena fight, and the Supreme Court rejected it there. Trump tries to distinguish this by saying that while U.S. Attorneys are appointed by the President, local district attorneys are not, and that state courts may not show as much respect to the presidency as a federal one. But, the majority says, there are already safeguards in place with regards to the grand jury system, and there's no reason Trump can't sue to block a specific subpoena if there's evidence that it wasn't issued in good faith.
The next question at issue is whether a state subpoena for the private papers of a President must meet some heightened standard as opposed to one issued to someone else, and SCOTUS says no. They reject the arguments raised by both the Solicitor General (as amicus) and Justice Alito in his dissent that (1) personal papers of the President should be treated similarly to official ones or (2) a state subpoena should be held to a higher standard than a federal one.
With this in mind, the case is sent back, ultimately to the District Court for NY, where “the President may raise further arguments as appropriate.” In other words, Trump can raise any claims as to the specific subpoenas at issue, not just that he has overall immunity, at that point.
Justice Kavanaugh (joined by Gorsuch) says that he thinks the Court basically got it right, but that he would've applied a “demonstrated, specific need” standard (from Nixon) that applies to official records.
Justice Thomas' dissent isn't fully that. He agrees that there's no absolute immunity for a sitting president with regards to a state subpoena. The main point of contention is that he would get things back to the District Court a different way, but still with the same ultimate goal, i.e. allowing Trump to raise any constitutional issues with this specific subpoena.
Justice Alito dissents as well. He does say that there shouldn't be an absolute bar, but that the standards for a subpoena of the president should be much higher. He raises various scenarios about a president being forced to appear for arraignment in state court and the like, and downplays the safeguards listed by the majority.
So, the big question is what this all means. The truth is, probably not very much, especially in the short term.
Neither case wholly precludes the subpoenas at issue, but neither fully grants them, either. In both cases, there will be additional lower court battles that will take awhile, none of which are going to be resolved before November. If Trump loses that election, the Congressional case may well be dismissed, since if he's not the president anymore, it's going to be hard for Congress to show any legislative purpose (and I expect Congress' will to do so will not be anywhere near as strong as it is now).
If he wins re-election, of course, these cases will still be alive and will continue, and could ultimately have some effects. What those effects are is of course all but impossible to predict. The biggest one in my mind, at least in the medium-term, is whether the results of either subpoena would be enough to erode Trump's support among the populace as a whole. This seems rather doubtful given the last four years. But if it did, that could perhaps embolden Congress to exercise more oversight, which is something that is sorely lacking right now.
On the legal side, there's really no way to know. We should be thankful, at least, that the Court didn't buy into Alito's idea of an imperial presidency. While his nightmares about a president being dragged in front of a state judge seem extreme, there's an equally extreme opposite side to that coin: if a president can't be brought up on state charges at all, doesn't that amount to him being wholly immune from anything that isn't specifically a federal crime? If he murdered someone, would there be enough ties to some federal issue to allow federal prosecution?
I also don't think Alito sufficiently justified his conclusion that a higher standard needs to be applied to non-presidential papers.
As frustrating as it can be, I'm glad the Court is proceeding slowly on this. Major changes on the balance of powers between the branches need to be looked at skeptically, regardless how much we may want them politically right now. Because remember, whatever rules apply to Trump will also apply to the next president and the one after that. And who knows, maybe we'll like one of them.