It is possible, of course, that the court could hold in Trump v. Vance that the Constitution requires a local prosecutor to make some special showing of need to obtain the president’s private records. But that would hardly be a resounding victory for Trump: The likely aftermath would be a second round of proceedings in the lower courts and a renewed finding of whatever requirements the court had imposed.
Likewise in the congressional subpoena cases, which also seek Trump’s private records from third parties. Trump’s position is that the Congress has no “legitimate legislative purpose” in seeking them. It would be a breathtaking rebuke of Congress, and inconsistent with the court’s review of legislative action across a wide range of settings, for the court simply to dismiss Congress’s purpose as illegitimate absent overwhelming proof. Roberts will not permit the court to engage in such a highhanded spanking of a coordinate branch.
Again, the court could well impose some special procedural hurdles where the records of the president himself are in issue. But it’s unlikely those barriers would be so high that Congress couldn’t establish them on remand before the D.C. Circuit, given the showing that Congress will likely be able to make.
