There are no absolutes, at least not at the Supreme Court, and that was both good and bad news for Donald Trump. In two 7-2 decisions, the court ruled that the presidency does not have “absolute immunity” from subpoena nor a “heightened need” that privileges him over any other citizen. Chief Justice John Roberts also wrote that Congress does not have an absolute right to subpoena a president’s personal records, and that lower courts erred in not considering separation-of-powers issues more carefully.
The upshot: no one’s gonna see Trump’s tax returns for months, if ever.
Let’s start with the clear loss in Trump v Vance, which nonetheless has a yuuuge silver lining. Trump sued Manhattan DA Cyrus Vance to block his subpoena of Trump’s financial records on the basis of “absolute immunity.” Roberts scoffed at that, along with everyone else on the court, even dissenters:
Given these safeguards and the Court’s precedents, we cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause. Our dissenting colleagues agree. JUSTICE THOMAS reaches the same conclusion based on the original understanding of the Constitution reflected in Marshall’s decision in Burr. Post, at 2, 5–6. And JUSTICE ALITO, also persuaded by Burr, “agree[s]” that “not all” state criminal subpoenas for a President’s records “should be barred.” Post, at 16. On that point the Court is unanimous.
Nor does a subpoena require a demonstration of “heightened need” when it involves a president:
We next consider whether a state grand jury subpoena seeking a President’s private papers must satisfy a heightened need standard. The Solicitor General would require a threshold showing that the evidence sought is “critical” for “specific charging decisions” and that the subpoena is a “last resort,” meaning the evidence is “not available from any other source” and is needed “now, rather than at the end of the President’s term.” Brief for United States as Amicus Curiae 29, 32 (internal quotation marks and alteration omitted). JUSTICE ALITO, largely embracing those criteria, agrees that a state criminal subpoena to a President “should not be allowed unless a heightened standard is met.” Post, at 16–18 (asking whether the information is “critical” and “necessary . . . now”).
We disagree, for three reasons. …
Rejecting a heightened need standard does not leave Presidents with “no real protection.” Post, at 19 (opinion of ALITO, J.). To start, a President may avail himself of the same protections available to every other citizen. … Furthermore, although the Constitution does not entitle the Executive to absolute immunity or a heightened standard, he is not “relegate[d]” only to the challenges available to private citizens. Post, at 17 (opinion of ALITO, J.). A President can raise subpoena-specific constitutional challenges, in either a state or federal forum. As previously noted, he can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause. See supra, at 17. This avenue protects against local political machinations “interposed as an obstacle to the effective operation of a federal constitutional power.” United States v. Belmont, 301 U. S. 324, 332 (1937).
In addition, the Executive can—as the district attorney concedes—argue that compliance with a particular subpoena would impede his constitutional duties.
These issues contribute to the massive silver lining to the dark cloud of Vance. And that is that the court did not order Trump to turn over those records, as some media outlets initially reported. Instead, they sent the case back to the district court to give Trump’s attorneys another opportunity to argue those points in opposing the subpoena:
The arguments presented here and in the Court of Appeals were limited to absolute immunity and heightened need. The Court of Appeals, however, has directed that the case be returned to the District Court, where the President may raise further arguments as appropriate. 941 F. 3d, at 646, n. 19.6
We affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
In other words, it might well be a year or more before this case gets settled again. It won’t be the last time the Supreme Court sees it, unless Vance loses interest in the subpoena. And given that the political value of those records disappears in November no matter how the election goes, one has to wonder whether Vance’s interest in those records will survive much past that point.
The real surprise today came in Trump v Mazars, in which the president challenged a series of subpoenas from the House for his financial records. In an identical 7-2 split, the court overturned lower-court rulings ordering Mazars to release the information. Once again Roberts didn’t put an end to the case, but this time he warned that Congress didn’t have supremacy over the executive. In the summary to the opinion, the 7-2 majority holds that the lower courts didn’t take enough note of the “intense political interests” involved, and remanded it back with a much tougher test:
The approach proposed by the House, which relies on precedents that did not involve the President’s papers, fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information. The House’s approach would leave essentially no limits on the congressional power to subpoena the President’s personal records. A limitless subpoena power could transform the established practice of the political branches and allow Congress to aggrandize itself at the President’s expense. These separation of powers concerns are unmistakably implicated by the subpoenas here, which represent not 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. The interbranch conflict does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity Nor are separation of powers concerns less palpable because the subpoenas were issued to third parties. …
First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. “ ‘[O]ccasion[s] for constitutional confrontation between the two branches’ should be avoided whenever possible.” Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 389–390 (quoting Nixon, 418 U. S., at 692). 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 legislative objective. 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.” Cheney, 542 U. S., at 387. 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 better. That is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency. Fourth, courts should assess the burdens imposed on the President by a subpoena, particularly because 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.
If Vance was a temporary loss but tactical win for Trump, this is both a tactical and permanent loss for House Democrats. Undoubtedly, Trump would have preferred a ruling that confirmed “absolute immunity” while in office, but it’s not too much exaggeration that Trump might have been the only person who thought it existed. (In fact, it’s not even certain Trump actually believed that argument.) This scolding from Roberts, and the 7-2 split that includes all four liberal justices, makes it pretty clear that they saw those subpoenas not as legitimate legislative mechanisms but political ploys. That message will resonate loudly and clearly in the lower courts.
Mazars might still come back to the Supreme Court, but it won’t be before November, either. That means that House Democrats can’t raid Trump’s financial records before the election. After the election, Vance may or may not still be interested in them, but House Democrats won’t have any use for them at all. This is a dead issue.
Clarence Thomas’ dissent in Mazars should be read in full for his masterful rejection of Congressional supremacy. In summation, Thomas would have struck down Congress’ appropriation of any subpoena power outside of an impeachment proceeding, especially in regard to private papers of a president:
Congress’ 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’ legislative powers. If Congress wishes to obtain these documents, it should proceed through the impeachment power. Accordingly, I respectfully dissent.
The four-factor test will be enough for Trump at this late stage. One would think he’d be high-fiving, but …
….for another President. This is about PROSECUTORIAL MISCONDUCT. We catch the other side SPYING on my campaign, the biggest political crime and scandal in U.S. history, and NOTHING HAPPENS. But despite this, I have done more than any President in history in first 3 1/2 years!
— Donald J. Trump (@realDonaldTrump) July 9, 2020
Finally, the only other surprise is that only one of the three cases got decided on a 5-4 split — and that was McGirt, a dispute over the status of the Creek Nation reservation in Oklahoma. Neil Gorsuch sided with the four liberals in declaring that the “allotment” process adopted by the government did not negate the treaty establishing the reservation, and that only an act of Congress could do that (via the Original Pechanga):
In the Treaty of 1856, Congress promised that “no portion” of the Creek Reservation “shall ever be embraced or included within, or annexed to, any Territory or State.” Art. IV, 11 Stat. 700. And within their lands, with exceptions, the Creeks were to be “secured in the unrestricted right of self-government,” with “full jurisdiction” over enrolled Tribe members and their property. Art. XV, id., at 704. So the Creek were promised not only a “permanent home” that would be “forever set apart”; they were also assured a right to self-government on lands that would lie outside both the legal jurisdiction and geographic boundaries of any State. Under any definition, this was a reservation. …
The federal government promised the Creek a reservation in perpetuity. Over time, Congress has diminished that reservation. It has sometimes restricted and other times expanded the Tribe’s authority. But Congress has never withdrawn the promised reservation. As a result, many of the arguments before us today follow a sadly familiar pattern. Yes, promises were made, but the price of keeping them has become too great, so now we should just cast a blind eye. We reject that thinking. If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.
It’s a novel approach — keeping our word to Native American tribes. Perhaps this is as good a time as any to try that strategy.
Update: Trump’s attorney is happier than Trump is:
Sekulow: “We are pleased that in decisions issued today, the Supreme Court has temporarily blocked both Congress & New York prosecutors from obtaining the President’s financial records. We will now proceed to raise additional Constitutional and legal issues in the lower courts.”
— Kaitlan Collins (@kaitlancollins) July 9, 2020
Well, Sekulow will get more billable hours out of it, too. But all kidding aside, Sekulow understands that Trump just won the tactical war.