Presidential Disappointment: Trump v. Vance

In an historic decision yesterday, Chief Justice Roberts held for a 7:2 majority that a sitting president isn’t absolutely immune from a state grand jury subpoena seeking the president’s private documents, and that a state prosecutor need not show a “heightened need” for such documents. It is a resounding legal defeat for President Trump, who had challenged the authority of a state district attorney to subpoena Trump’s personal and corporate financial records. But the decision may be a political win; more likely than not, Trump will be able to stave off the release of his tax records until after the November election. Here is a recap of the Court’s decision in Trump v. Vance.

Case Background

In 2018, Cyrus R. Vance, the Manhattan District Attorney, opened a grand jury investigation into whether certain unnamed individuals and businesses have broken New York financial laws. As part of the investigation, Vance subpoenaed Mazars USA, LLP, President Trump’s personal accounting firm. The subpoena directed Mazars to turn over Trump’s personal and corporate financial records from 2011–2018, including “tax returns and related schedules” and “all statements of financial condition, periodic financial reports, and independent auditors’ reports.”

Trump contested the subpoena in his personal capacity (not in his official capacity as president). He sued Vance and Mazars in the U.S. District Court for the Southern District of New York, arguing that a sitting president enjoys “absolute immunity” from any and all state criminal proceedings and seeking a permanent injunction against the subpoena’s enforcement.

The district court denied Trump’s injunction request. On appeal, the Second Circuit Court of Appeals affirmed. Relying largely on the facts of the case, the court reasoned that Trump does not enjoy absolute immunity from a grand jury subpoena that is served on a third party and requests “non-privileged” documents, i.e., records that do not relate to Trump’s official duties as President of the United States. It also rejected an alternative argument that, if Trump does not enjoy absolute immunity, Vance is still required to show that he has a “heightened need” for the financial records sought.

Trump appealed to the Supreme Court, which granted his case and heard arguments via teleconference in May. Today, the Court issued its decision: The Second Circuit’s judgment is affirmed and remanded. Chief Justice Roberts, writing for a 7:2 majority, held that a sitting president does not possess absolute immunity from, or require a heightened standard for, a state criminal subpoena. Justices Ginsburg, Breyer, Sotomayor, and Kagan joined in full. Justices Kavanaugh and Gorsuch agreed in a concurring opinion.

Chief Justice Roberts’ Majority Opinion

Roberts begins his opinion with a history lesson, canvassing past presidents who have been subpoenaed while in office. In 1807, Aaron Burr—former Vice President and recent winner of the infamous duel with Alexander Hamilton—subpoenaed President Thomas Jefferson for letters relating to Burr’s ongoing treason trial. Jefferson objected, arguing that a sitting president could not be served a subpoena. Chief Justice John Marshall, presiding as circuit judge over the dispute, ruled against Jefferson. Marshall held that “there is no exception whatever” to the “provisions of the constitution . . . which give to the accused a right to the compulsory process of the court.” He distinguished the powers of the popularly-elected U.S. president from those of the “divinely”-appointed British king. And while, at times, a president’s duties may “demand his whole time for national objects,” those duties are “not unremitting” and cannot be used as a categorical defense against compliance with any and all investigatory proceedings, Marshall wrote.

Subsequent presidents—six, in fact—heeded Marshall’s decision. James Monroe in 1818 complied with a subpoena to testify against one of his executive appointees. Ulysses S. Grant did the same in 1875. A century later, Gerald Ford complied with his own attempted assassin’s subpoena to testify in her defense (“from a safe distance,” Roberts adds). Jimmy Carter complied with two separate investigatory subpoenas, and Bill Clinton complied with three. Even Richard Nixon—though after losing at the Supreme Court—eventually complied with the Special Prosecutor’s subpoena and turned over the Oval Office tapes that would soon derail his presidency.

Absolute Immunity Rejected

This historical backdrop is illuminating, Roberts says, but it has a key thread running through it: each case involved a federal subpoena, unlike Trump’s case which involves a state subpoena. Trump argued this difference is key, submitting that a president is absolutely immune from state criminal proceedings while in office. He supported his argument on three grounds.

First, he said that to comply with state criminal subpoenas—which may be served by any of the 2,000+ local prosecutors across the country—would divert the president’s attention away from his constitutional duties. He cited Nixon v. Fitzgerald (1982). There the Court wrote that a sitting president has “absolute immunity from damages liability predicated on his official acts,” relying partly on the ground that such liability could “distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.”

But Roberts dismisses Trump’s reliance on Fitzgerald. “Fitzgerald did not hold that distraction,” by itself, “was sufficient to confer absolute immunity,” he writes. Instead, Fitzgerald referred to distraction caused specifically by a president’s trepidation to exercise his constitutional duties for fear of being sued for his official acts. Plus, Clinton v. Jones (1997) expressly rejected the idea that distraction alone is sufficient to invoke absolute immunity. There, President Clinton contended that the chance of being “distracted by the need to participate in litigation” gave him absolute immunity from suit in both his official and private capacities. Clinton “disagreed with that rationale,” Roberts explains, since the “‘dominant concern’ in Fitzgerald was not mere distraction but the distortion of the Executive’s ‘decisionmaking process’ with respect to official acts that would stem from ‘worry as to the possibility of damages.'” Thus, the possibility that Trump would be distracted from his presidential duties alone is insufficient to grant him absolute immunity.

Second, Trump argued that to comply with Vance’s subpoena would sully his public image and undermine his leadership abilities, which are necessary for the functions of the presidency. Roberts, however, is unimpressed. For starters, complying with a valid subpoena—and doing nothing more—is in fact a “normal duty” of being a U.S. citizen, he explains (as the Court recognized in Branzburg v. Hayes (1976)). So “even if a tarnished reputation were a cognizable impairment” to the president’s carrying out his duties, “there is nothing inherently stigmatizing about a [p]resident performing ‘the citizen’s normal duty of . . . furnishing information'” pursuant to a subpoena, says Roberts. Of course, one might object that if Trump associates himself with those who have progressed beyond the “subpoena” stage of criminal proceedings, then he’d find himself with a public stigma of associating with potential criminals. But Roberts counters that risk of association doesn’t automatically prevent a president from exercising his duties, as we saw with the six historical presidents earlier.

Third, Trump argued that presidents would become “easily identifiable target[s]” for harassment since any of the country’s local prosecutors might be driven by politics to initiate farcical state criminal proceedings. And it’s true, Roberts admits, “that harassing subpoenas could, under certain circumstances, threaten the independence or effectiveness of the Executive.” But the judicial process has a number of safeguards. For starters, “grand juries are prohibited from engaging in ‘arbitrary fishing expeditions’ and initiating investigations ‘out of malice or an intent to harass,'” Roberts notes (quoting United States v. R. Enterprises, Inc. (1991)). And federal courts know that these exceptions apply with “special force” to a sitting president by virtue of his position as head of the Executive Branch. Next, the Constitution’s Supremacy Clause bars states from obstructing the actions of the president. “Any effort to manipulate a [p]resident’s policy decisions or to retaliate against a President for official acts through the issuance of a subpoena . . . would thus be an unconstitutional attempt to ‘influence’ a superior sovereign ‘exempt’ from such obstacles,” Roberts says (quoting McCulloch v. Maryland (1819)). Where a president (or court) suspects such intentions, that president can challenge the state’s actions (see, e.g.42 U.S.C. §1983), just as Trump has done here.

Thus, Roberts concludes that a president, ipso facto, is not entitled to absolute immunity from state criminal process while in office. Neither the risk of distraction, the possibility of public stigma, nor the chance of harassment convinces Roberts to conclude otherwise.

Heightened Standard Rejected

Roberts then turns to Trump’s backup defense: that a state-law subpoena must demonstrate at least a “heightened need” for the president’s personal financial records.  Trump offered a two-pronged test to determine whether a subpoena clears this bar: (1) that the evidence the subpoena seeks is “critical” for the prosecutor’s “specific charging decisions”; and (2) that the subpoena is a “last resort” because the evidence is needed “now, rather than at the end of the president’s term” and is “not available from any other source.”

Roberts rejects this standard for three reasons. First, Trump tries to anchor his test in Burr, but he cherrypicks the dicta upon which he relies. Chief Justice Marshall did write that a court shouldn’t “proceed against the president as against an ordinary individual.” And true, Marshall added that where a subpoena for official documents is concerned, the prosecutor must “clearly show” why the documents sought are “essential to the justice of the case.” The problem, however, lies a few sentences earlier. There Marshall wrote: “If there be a paper in the possession of the executive, which is not of an official nature, he must stand, as respects that paper, in nearly the same situation with any other individual” (emphasis added). The only reason the word Marshall includes the word “nearly”, Roberts explains, is because “the [p]resident retains the right to assert privilege over documents that, while ostensibly private, ‘partake of the character of an official paper'” (quoting Burr). Marshall was thus speaking of a heightened standard only for a subpoena that seeks official documents from the office of the president, not a subpoena for private documents that a president—like every other citizen—would possess. Thus, Trump cannot tether his argument to Burr, and he hasn’t identified any other precedential support for it.

Second, Roberts is unpersuaded by Trump’s argument that a heightened standard is necessary to preserve the proper functioning of the Executive branch. Roberts already disposed of the idea of investigatory harassment. And Trump’s other contention would create a “double standard” in law, Roberts says. Trump claims that state subpoenas are invalid if they fail to show that the evidence sought is “essential” to the case. But federal subpoenas are valid so long as the evidence sought is “material” to the case. Trump offers no statutory or jurisprudential support for upping the ante. So, Roberts finds “nothing in Article II or the Supremacy Clause [that] supports holding state subpoenas to a higher standard than their federal counterparts,” assuming a state subpoena “is not issued to manipulate” (as discussed earlier) and “the documents themselves are not protected” (also discussed earlier).

Third, Trump’s standard would enfeeble the power of state grand juries (again, without any backing from prior caselaw or current statutes). “Requiring a state grand jury to meet a heightened standard of need would hobble the grand jury’s ability to acquire ‘all information that might possibly bear on its investigation,'” Roberts explains (quoting R. Enterprises, Inc.). For instance, the state may lose investigative leads it would’ve had had it been able to enforce the subpoena. If the evidence obtained in the subpoena implicates third-parties, the state wouldn’t become aware of their involvement. And if the subpoena turns up exculpatory evidence for others in the investigation, the state would be unaware of that too. In sum, where—as here—there is no threat of intrusion on the Office of the President, “the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence,” writes Roberts.

What Happens Next

“In our judicial system,” says Roberts, “the public has a right to every man’s evidence.” Two centuries ago, Chief Justice Marshall affirmed that no citizen—not even the president—is categorically free from the bounds of this principle. “We reaffirm that principle today,” Roberts concludes, “and hold that the [p]resident is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.”

With this holding, Roberts has set precedent for future cases involving state subpoenas against sitting presidents. However, this is not the end-all-be-all for this case. The questions here concerned only absolute immunity from and a heightened standard for state subpoenas in general. Both the lower court and Roberts recognized that there are other defenses Trump may raise. For instance, Trump may a constitutional argument that this particular subpoena obstructs him from carrying out his duties as president. He may also raise procedural challenges to the subpoena or its enforcement.

So, upon “direct[ion]” from the Second Circuit, Roberts sent the case back to the lower courts where Trump “may raise further arguments as appropriate.” This means litigation will continue. And this, in turn, means it’s unlikely Vance—and the general public—will receive Trump’s financial records before the November presidential election.

In the world of politics, this isn’t as big a defeat for Trump as you might think. In fact, it’s hardly one at all. Sure, he lost in our nation’s highest court. And if he continues to fight Vance’s subpoena, it only adds more support for those who claim that he’s hiding something nefarious in his financial records. But he doesn’t have to turn over his tax returns to Vance at this moment. By raising further arguments in the lower courts—which his attorney, Jay Sekulow, has stated he plans to do—Trump can delay the release of his tax returns and any incidental damaging political information until, perhaps, after the November election.

However, in the legal world, this is a resounding loss—not just for Trump himself but for the presidency as well. State subpoenas can be valid without showing a “heightened need” for a sitting president’s personal documents. And no president enjoys total immunity from such a subpoena simply by virtue of being in office. In this regard, a president is indeed just an ordinary citizen under the law.

Justice Kavanaugh’s Concurrence

Justice Kavanaugh—joined by Justice Gorsuch—penned a four-page opinion concurring in the Court’s judgment. Kavanaugh agrees that a sitting president does not enjoy absolute immunity from state criminal process. “In our system of government . . . no one is above the law,” he writes, and “[t]hat principle applies, of course, to a President.”

The problem for Kavanaugh is the competing interests at stake in a case like this. On the one hand, states have an interest in investigating potential crimes and gathering relevant evidence. On the other hand, the president has a constitutional duty (under Article II) to perform the duties of his office “without undue interference.” And a state subpoena for the president’s personal records might still intrude on the president’s ability to perform his constitutional duties. So “[t]he question here,” Kavanaugh writes, “is how to balance the State’s interests and the Article II interests.”

Kavanaugh would look to Nixon v. Fitzgerald‘s “demonstrated, specific need” standard. Requiring a state prosecutor to show a “demonstrated, specific need” for a president’s personal records would “accommodate[] both the interests of the criminal process and the Article II interests of the Presidency,” he argues. Kavanaugh thus offers his own standard for the lower courts to consider after rejecting Trump’s absolute immunity argument, whereas Roberts simply rejected Trump’s proposed standards.

The Dissents

Justice Thomas

Justice Thomas in an 11-page opinion agreed that presidents do not enjoy absolute immunity from being served a grand jury subpoena seeking private records. (Though, he comes to this conclusion from a decidedly formalistic route—looking to the Constitution’s text and early caselaw—as opposed to Roberts’ more functionalist approach.) However, Thomas opines that, depending on the nature of the subpoena, a president may enjoy absolute immunity from complying with it. To Thomas, the validity of the subpoena turns entirely upon whether the president can comply with it and, at the same time, fulfill the duties of the presidency.

Thomas would use Chief Justice Marshall’s standard in Burr. “If the President can show that ‘his duties as chief magistrate demand his whole time for national objects,'” he writes, then the president “is entitled to relief from enforcement of the subpoena” (quoting Burr). This test “places the burden on the [p]resident but also requires courts to take pains to respect the demands on the President’s time.” Thomas would therefore remand this case and instruct the lower courts to apply this standard to Vance’s subpoena.

Justice Alito

In an opinion longer than the majority’s, Alito underscores both the “unprecedented” history of this case and the effects the Court’s decision will have on future presidents. He also proposes his own standard for evaluating grand jury subpoenas like the one at issue here. It’s a three-pronged test: When a state prosecutor seeks a sitting president’s personal documents, the prosecutor “should be required (1) to provide at least a general description of the possible offenses that are under investigation, (2) to outline how the subpoenaed records relate to those offenses, and (3) to explain why it is important that the records be produced and why it is necessary for production to occur while the [p]resident is still in office.”

Two Constitutional principles inform Alito’s test. First, “[t]he President is the only person who alone composes a branch of government,” and “there is not always a clear line between his personal and official affairs” (quoting the Court’s same-day decision in Trump v. Mazars USA, LLP). (The savvy reader might recognize this as similar if not identical to the “unitary executive theory.”) Second, “[s]tate[s] may not block or interfere with the lawful work of the National Government.” Alito says it follows a fortiori from these principles that a president enjoys absolute immunity from state criminal prosecution while in office. As for a subpoena to produce documents—which Alito admits is “less intrusive” than prosecution and “would not require [as] much work on the President’s part”—he would revert to the test outlined above.

Photo Credits: Business AM Live


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