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by Causes | 7.9.20

What’s the story?

The Supreme Court on Thursday issued a pair of decisions involving the disclosure of President Donald Trump’s tax returns & financial records, holding that the president isn’t immune from state grand jury subpoenas, and that Congress can subpoena the president’s financial records from his accountants. The Supreme Court remanded both cases back to lower courts, which must reconsider constitutional & separation of powers issues raised by the cases.
The Supreme Court issued a 7-2 decision in a case known as Trump v. Vance, which dealt with whether the Manhattan district attorney can obtain the president’s tax returns as part of a state grand jury investigation. The Court held that a state grand jury doesn’t need to satisfy a heightened standard of review to issue a subpoena for the president’s financial records because of Article II of the Constitution & the Supremacy Clause. It remanded the case back to the district court, where it will continue in light of the Supreme Court’s decision and the president can raise constitutional challenges to the subpoena in an effort to quash it as an attempt to influence his official duties.
The Supreme Court also issued a 7-2 decision in a case known as Trump v. Mazars USA, which was consolidated with a similar case called Trump v. Deutsche Bank and concerned whether congressional committees have the authority to subpoena the president’s accountant & creditors for financial records belonging to him & his business entities. The Court held that Congress has the power to issue subpoenas involving the president, but remanded the case back to the district court because it didn’t carefully consider whether the subpoenas were narrowly tailored, whether other means could be used to obtain the information, or separation of powers concerns raised by the subpoenas.
President Donald Trump reacted to the decisions in a series of tweets, which read in part:

“The Supreme Court sends case back to Lower Court, arguments to continue. This is all a political prosecution. I won the Mueller Witch Hunt, and others, and now I have to keep fighting in a politically corrupt New York. Not fair to this Presidency or Administration!”

What did the justices say about the president’s tax returns in Trump v. Vance?

Chief Justice John Roberts wrote the majority opinion, which was joined by Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Sonia Sotomayor, and Justice Elena Kagan. The majority opinion read in part:

“Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need. The “guard[] furnished to this high officer” lies where it always has ― in the “conduct of a court” applying established legal and constitutional principles to individual subpoenas in a manner that preserves both the independence of the Executive and the integrity of the criminal justice system.”

Justice Brett Kavanaugh filed a concurring opinion with the majority’s judgment which was joined by Justice Neil Gorsuch.
Justice Clarence Thomas filed a dissenting opinion, which read in part:

“I agree with the majority that the President has no absolute immunity from the issuance of this subpoena. The President also sought relief from enforcement of the subpoena, however, and he asked this Court to allow further proceedings on that question if we rejected his claim of absolute immunity. The Court inexplicably fails to address this request, although its decision leaves the President free to renew his request for an injunction against enforcement immediately on remand.”

Justice Samuel Alito also filed a dissenting opinion, which read in part:

“The subpoena at issue here is unprecedented. 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. Respect for the structure of Government created by the Constitution demands greater protection for an institution that is vital to the Nation’s safety and well-being.”

What did the justices say about the president’s financial records in Trump v. Mazars USA?

Chief Justice John Roberts wrote the majority opinion, which was joined by Justice Ruth Bader Ginsburg, Justice Stephen Breyer, Justice Sonia Sotomayor, Justice Neil Gorsuch, and Justice Brett Kavanaugh. The majority opinion offered four considerations for courts to take into account, which read in part:

“First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers… Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular objective. The President’s unique constitutional position means that Congress may not look to him as a “case study” for general legislation...

Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. The specificity of the subpoena’s request “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.”

Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress’s legislative purpose, the better. That is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency. In such cases, it is “impossible” to conclude that a subpoena is designed to advance a valid legislative purpose unless Congress adequately identifies its aims and explains why the President’s information will advance its consideration of the possible legislation.

Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena. We have held that burdens on the President’s time and attention stemming from judicial process and litigation, without more, generally do not cross constitutional lines. But burdens imposed by a congressional subpoena should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage.

Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.

When Congress seeks information “needed for intelligent legislative action,” it “unquestionably” remains “the duty of all citizens to cooperate.” Congressional subpoenas for information from the President, however, implicate special concerns regarding the separation of powers. The courts below did not take adequate account of those concerns. The judgments of the Courts of Appeals for the D.C. Circuit and the Second Circuit are vacated, and the cases are remanded for further proceedings consistent with this opinion.”

Justice Clarence Thomas filed a dissenting opinion which read in part:

“Congress’s legislative powers do not authorize it to engage in a nationwide inquisition with whatever resources it chooses to appropriate for itself. The majority’s solution ― a nonexhaustive four-factor test of uncertain origin ― is better than nothing. But the power that Congress seeks to exercise here has even less basis in the Constitution than the majority supposes. I would reverse in full because the power to subpoena private, nonofficial documents is not a necessary implication of Congress’s legislative powers. If Congress wishes to obtain these documents, it should proceed through the impeachment power. Accordingly, I respectfully dissent.”

Justice Samuel Alito also filed a dissenting opinion, which read in part:

“The Court recognizes that the decisions below did not give adequate consideration to separation of powers concerns. Therefore, after setting out a non-exhaustive list of considerations for the lower courts to take into account, the Court vacates the judgments of the Courts of Appeals and sends the cases back for reconsideration. I agree that the lower courts erred and that these cases must be remanded, but I do not think that the considerations outlined by the Court can be properly satisfied unless the House is required to show more than it has put forward to date.

Specifically, the House should provide a description of the type of legislation being considered, and while great specificity is not necessary, the description should be sufficient to permit a court to assess whether the particular records sought are of any special importance. The House should also spell out its constitutional authority to enact the type of legislation that it is contemplating, and it should justify the scope of the subpoenas in relation to the articulated legislative needs. In addition, it should explain why the subpoenaed information, as opposed to information available from other sources, is needed. Unless the House is required to make a showing along these lines, I would hold that enforcement of the subpoenas cannot be ordered. Because I find the terms of the Court’s remand inadequate, I must respectfully dissent.”

— Eric Revell

(Photo Credit: White House via Flickr / Public Domain)

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