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| In a pair of rulings on Thursday, the Court showed that Trump has not entirely disfigured the Presidency, nor erased the limits that the Constitution places on it. |
In two linked decisions handed down on Thursday morning, both decided by a vote of 7–2, the Supreme Court made it clear to Donald Trump that the Presidency is not what he imagines it to be. It is not a ticket to “absolute immunity,” as he and his lawyers asserted, and it is not the case, as he put it in one of a string of furious tweets in the wake of the rulings, that “Courts in the past have given ‘broad deference.’ BUT NOT ME!” Though it may come as an all-caps shock to Trump, being President does not mean that he can simply rip up subpoenas he doesn’t like. The Presidency is an office embedded in the obligations of citizenship and the restraints of the Constitution.
The two decisions, Trump v. Mazars and Trump v. Vance, which relate to attempts by three congressional committees and Manhattan’s District Attorney, Cyrus Vance, Jr., respectively, to gain access to Trump’s tax and financial records, won’t result in those documents being released immediately; instead, they send the cases back to lower courts. The additional litigation could take months, extending beyond the election. The timing will be a disappointment to many observers, given the high odds that the documents contain information that could unsettle even Trump’s supporters. (Of course, it’s not as though there’s a shortage of reasons to vote against him, particularly given his handling of the covid-19 crisis.) But the decisions nonetheless represent victories; they indicate that Trump has not entirely disfigured the Presidency, nor erased the limits that the Constitution places on it. For one thing, given how weak the President’s attorneys’ arguments have been, there’s a fair chance that many of the records will come to light, at least eventually. For another, Trump’s lawyers can’t again argue, as one of them did when Trump v. Vance was last in the lower courts, that the President could indeed shoot someone in the middle of Fifth Avenue, and law enforcement wouldn’t be able to do much about it.
On the question of absolute immunity, which was addressed most clearly in Vance, Trump’s loss was even greater than the 7–2 margin implies. Four Justices wrote opinions; the controlling decision, written by Chief Justice John Roberts and joined by Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor, rejected Trump’s position “that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause” from the outset. But so did the President’s two appointees: Brett Kavanaugh wrote a concurring opinion that was marginally more sympathetic to Trump but nonetheless agreed “that a President does not possess absolute immunity from a state criminal subpoena.” Neil Gorsuch joined that opinion. Clarence Thomas and Samuel Alito, each of whom wrote a separate dissent, rejected absolute immunity, too, though somewhat grudgingly in Alito’s case. (Both Justices would still make it harder than the majority would for the President to be subpoenaed.) As Roberts wrote, “on that point, the court is unanimous.” That agreement is a measure of Trump’s extremism. It also means that he will have to find actual legal grounds for arguing against the subpoenas when they return to the lower courts.
The Justices did not rule out the possibility that such grounds may exist. In the Vance case, which grew out of an investigation into Trump’s alleged hush-money payments to Stephanie Clifford, the adult-film actress known as Stormy Daniels—which may involve violations of campaign-finance and tax laws—Roberts wrote that “no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.” Roberts also rejected the President’s lawyers’ backup argument that, even if there wasn’t “absolute immunity,” subpoenas directed at the President had to be limited by a “heightened standard of need.” But Roberts pointed out that any President still has protections, including the ability to “raise subpoena-specific constitutional challenges.” Some of these may be related to the fact that he or she is, indeed, President—for example, a President could argue that a subpoena is an attempt to “influence the performance of his official duties.” In that sense, Roberts wrote, Trump is not “ ‘relegate[d]’ only to the challenges available to private citizens.”
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| United States Supreme Court (Front L-R) Associate Justice Stephen Breyer, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justices Ruth Bader Ginsburg, Samuel Alito, Jr., (Back L-R) Associate Justices Neil Gorsuch, Sonia Soto |
There have been cases similar to Vance before, in which Presidents have been asked for evidence: Thomas Jefferson, in the treason trial of Aaron Burr; Richard Nixon, in the investigation of Watergate conspirators; Gerald Ford, in the trial of Lynette (Squeaky) Fromme, who tried to assassinate him; and Bill Clinton, in a civil suit brought by Paula Jones. The clear record in all of them is that Presidents need to give evidence when it is called for. Trump’s lawyers had said that Vance is different because it is a state criminal proceeding; they invoked the image of endless local prosecutors trying to “harass” the President. The majority didn’t see how that prospect fundamentally changes the constitutional stakes.
The other case, Trump v. Mazars, involves a different set of considerations. (Mazars is the name of the accounting firm that has physical possession of many Trump records; Deutsche Bank was also subpoenaed, in a case combined with this one.) The House committees seeking Trump’s records, along with those of some of his family members and businesses, were not doing so as part of a criminal case. Nor were they doing so as part of an impeachment proceeding, although some in Congress no doubt hoped that what was revealed might lead to investigations with consequences for Trump. Instead, the committees argued that they need Trump’s financial records to help them determine whether future legislation might be necessary—for example, to better prosecute money laundering, or to prevent the use of sham real-estate valuations, or to disclose the financial connections between a Presidential candidate and foreign governments or businesses. The committees took this approach because Congress does have broad subpoena power when it comes to figuring out how to write laws.
Roberts also wrote the Mazars decision, which all the Justices except Thomas and Alito fully signed on to, and in it he noted that Trump argued “that the usual rules for congressional subpoenas do not govern here because the President’s papers are at issue.” In reality, Roberts wrote, Congress can have very good reasons for drawing a President, and his papers, into its legislative inquiries. But the majority also concluded that the House committees had gone too far in their arguments, leaving “essentially no limits” on their power of subpoena. After all, anything and everything could potentially relate to future legislation: “The President’s financial records could relate to economic reform, medical records to health reform, school transcripts to education reform, and so on.”
When Congress subpoenas the President, the Court found, issues relating to the separation of powers come into play in a way that they don’t when a President is asked to give evidence in a criminal proceeding. The middle way the Court offered was a four-step test: Did the legislative purpose really warrant a subpoena? Was the demand for documents broader than it had to be? Did courts think that there was good evidence establishing that the purpose Congress claimed was, indeed, its purpose? And how much of a burden did it place on the President? This obviously makes for a longer path toward revealing Trump’s financial entanglements than if the Court had simply ordered the President to open his files today. But the Court also expressed the hope that, if neither side is assured of an automatic victory in court, Congress and the President may be more motivated to negotiate and come to an accommodation about turning over evidence. This amounts to a hope that, even in a polarized Washington, politics might still function. Perhaps it will; Trump won’t always be President, and limits on congressional overreach have their uses, too. The rulings were a reminder that this country still has laws. Trump, as he wrote in another angry tweet, believes that the Court was “Not fair to this Presidency or Administration!” He knows he has lost.
Amy Davidson Sorkin
