On July 9, 2020, Chief Justice John Roberts delivered a 7-2 opinion in Trump v. Mazars USA, refusing to enforce congressional subpoenas that sought President Trump’s tax returns and other financial records about himself, his children, and affiliated businesses.
On July 9, 2020, Chief Justice John Roberts delivered a 7-2 opinion in Trump v. Vance, allowing state prosecutors to subpoena financial records concerning President Trump and his businesses.
Trump v. Mazars USA: Just months before the presidential election, the Supreme Court declined to enforce subpoenas that could have publicly revealed President Trump’s tax returns and financial conduct. Congressional committees demanded various financial records using their “legislative power,” seeking to investigate the need for possible statutory reform about corruption, terrorism, money laundering, or election interference. One committee also claimed oversight power to investigate executive misconduct. Mazars is the first time that any Supreme Court examined a congressional subpoena for a President’s personal information. The majority created a new “balanced approach” that tried to respect the long history of congressional subpoenas without allowing political warfare through a President’s private records. The Court remanded for lower courts to consider: (i) whether Congress’s asserted legislative purpose requires information about the President, rather than someone else, (ii) whether the subpoena can be narrowed to minimize interbranch conflict, (iii) whether the legislative purpose is adequately identified, and (iv) whether a subpoena’s burdens on the President are excessive. The Court’s flexible multi-part test guarantees that none of Trump’s information will reach Congress before the next election. Yet it offers very limited guidance for deciding future cases, declining even to say how that new test should apply to the subpoenas in this case.
Trump v. Vance: New York’s District Attorney subpoenaed financial records concerning President Trump — including his tax returns since 2011 — so that a grand jury could investigate “multiple individuals whose conduct may have violated state law.” The Supreme Court refused to give Trump “absolute immunity” from that subpoena, holding that the seriousness of a criminal prosecution requires access to all kinds of available evidence. The Court cited a long history of presidents who offered analogous information. Thomas Jefferson agreed to surrender information in various criminal proceedings against Aaron Burr. Richard Nixon had to give tape recordings to the Watergate Special Prosecutor. Presidents Monroe, Grant, Ford, Carter, and Clinton participated in diverse criminal prosecutions by providing testimony or documents. By contrast, Trump argued that his case is different because it concerns a state criminal investigation, not federal law. The Supreme Court, however, specifically denied Trump’s arguments about presidential distraction, stigma, and harassment. The Court held that “no citizen, not even the President, is categorically above the common duty” to comply with criminal subpoenas. Even though Trump can still make specific objections to overbroad requests or undue burdens, he cannot escape from subpoenas altogether by claiming absolute immunity or heightened legal standards. Despite Trump’s defeat in this case, New York’s grand jury subpoena should not yield any lawyer available public information for months or longer, which obviously affects the decision’s political scope and practical importance.
In its two decisions regarding subpoenas of the President’s private financial records, the Supreme Court took a decidedly cautious position. Importantly, it reaffirmed the principle that the presidency is not above the law, and that the President, like every other citizen, is obligated to cooperate with properly conducted criminal law investigations. But at the same time it acknowledged that such an investigation must take into account the unique role of the presidency in our constitutional government by incorporating procedural protections against bad faith, harassment, or undue distraction. The Court also reaffirmed the authority of Congress to use its subpoena powers in order to conduct legislative investigations, but it imposed new limits on that authority when it is directed toward the President himself. The Court seemed much more concerned with the potential for overreach by Congress than it did with the prospect of recalcitrance by the President.
One result of the decisions is that the President and his associated business interests will likely be required eventually to submit records pertaining to his personal finances to prosecutorial authorities in the State of New York, although public disclosure of those materials is unlikely at any time in the near future. Another result is that Congress probably will not be able to obtain most of the President’s financial records that it subpoenaed, except in the extremely unlikely event that it is able to reach a negotiated arrangement with the Trump administration. As the Court observed, such negotiated arrangements have been customary in the past, but as anyone with even passing awareness of the current political situation must know, the President’s refusal to disclose his personal finances is virtually certain to remain absolute. If the Court imagined otherwise, they were engaging in wishful thinking.
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