Argument preview: Justices to tackle disputes over access to Trump financial records

Editor’s note: This post previously ran on March 9, 2020, as the introduction to our symposium before oral argument in Trump v. Mazars USA and Trump v. Vance, as well as at Howe on the Court, where it was originally published.

During the 2016 presidential campaign, then-candidate Donald Trump famously refused to release copies of his tax returns – a departure from the practice of nearly all major-party candidates in recent decades – and he has continued to decline to do so since then. But on May 12, the Supreme Court will hear oral argument in a trio of cases arising from efforts by a New York grand jury and congressional committees to gain access to the president’s financial records. The court’s ruling could be significant not only for Trump and his businesses, but also for the presidency more broadly.

The first two cases slated for argument on May 12, Trump v. Mazars USA and Trump v. Deutsche Bank, involve subpoenas issued by congressional committees. In the Mazars case, the House Committee on Oversight and Reform issued a subpoena in April 2019 to Mazars, the president’s longtime accounting firm, for financial records relating to Trump and his businesses. The committee said that it wanted the documents as part of its investigation into the adequacy of current government ethics laws.

Trump asked a federal district court in Washington to bar Mazars from complying with the subpoena, arguing that the committee’s investigation into his finances does not serve the kind of legitimate legislative purpose that the Supreme Court’s cases require. The district court rejected that argument, and the U.S. Court of Appeals for the District of Columbia Circuit affirmed.

In the Deutsche Bank case, the House Committee on Financial Services and the House Permanent Select Committee on Intelligence issued subpoenas to Deutsche Bank, the president’s biggest lender, and Capital One, seeking records for the president, his family and the Trump Organization as part of an investigation into possible foreign influence in U.S. elections. The Trumps and the Trump Organization asked a federal court in New York City to block the banks from complying with the subpoenas. The district court turned down the Trumps’ request, and the U.S. Court of Appeals for the 2nd Circuit agreed with the district court that the subpoenas did not exceed Congress’ power. The justices agreed to take up both cases in December, scheduling them for a combined one hour of oral argument.

In his brief in the Supreme Court, Trump describes the committees’ subpoenas as “unprecedented.” The fact that there is no historical precedent for the subpoenas suggests, he continues, “that something is amiss.”

Trump warns the justices that the subpoenas open the door to allowing Congress to seek records from a sitting president simply by asserting that it is considering legislation “that might require presidents to disclose that information” or as a “case study into any legislative issue it might be investigating.” But the real purpose of the subpoenas, Trump asserts, is to determine whether the president broke the law, and Congress can’t magically transform a law-enforcement purpose into a legislative one by reciting “magic words” about the possibility of legislation.

More broadly, Trump adds, Congress does not have the authority to legislate in the areas covered by these subpoenas. The Constitution, not Congress, created the Office of the President, which means that Congress “lacks the legislative power to dictate to the President on these matters, expand or alter the officer’s qualifications, or otherwise interfere with his ability to exercise” his duties.

And in any event, Trump concludes, the Supreme Court should not answer questions about the constitutionality of the subpoenas because the committees did not have the power to issue them in the first place. Particularly because of the “interbranch disputes” that the subpoenas create, Trump maintains, the committees needed specific authorization from the full House of Representatives to issue the subpoenas.

The federal government filed a “friend of the court” brief backing the president. The government argues for a more stringent standard for subpoenas in cases involving the president. The subpoena should only be enforced if the information that it seeks is “demonstrably critical” to the purpose of the subpoena, the government asserts; moreover, congressional investigators should “exhaust other potential sources before demanding the President’s personal information.”

The House of Representatives counters that there is “nothing unprecedented” about the subpoenas issued by the committees. Congressional committees have historically “investigated the wide range of issues on which Congress legislates,” including by seeking information from sitting presidents and their families.

The bar for subpoenas issued by congressional committees is low, the House emphasizes. Courts should enforce them as long as they have a “valid legislative purpose,” which means that they seek “information that will inform Congress on a subject on which legislation could be had.” These subpoenas meet that bar, the House maintains: They ask for documents that will help the committees to consider several bills. And because the subpoenas have a valid legislative purpose, the House continues, it doesn’t matter whether the committees are simultaneously investigating possible wrongdoing by the president.

The House acknowledges that the president could seek to quash a subpoena by arguing that complying with it would interfere with the operations of the executive branch. But the president hasn’t made that argument here, the House stresses.

Finally, the House pushes back against any suggestion that the committees lacked the power to issue the subpoenas because they were not authorized by the full House. The House of Representatives authorized these investigations, it notes, and the House’s rules allow the committees to issue any subpoenas that they regard as necessary. But even if that were not enough, the House adds, in July 2019 the House specifically ratified the subpoenas with a resolution. The House “clearly has taken political responsibility for investigating this President,” it concludes.

The third case in the trio, Trump v. Vance, has its roots in a New York grand jury’s investigation of criminal violations of state law. As part of that investigation, New York City’s district attorney, Cyrus Vance, issued a grand-jury subpoena to Mazars, seeking tax returns and other financial documents. The president went to federal district court in New York, arguing that the subpoena cannot be enforced while the president is in office.

The district court dismissed the case, relying on a Supreme Court decision, Younger v. Harris, holding that federal courts should (among other things) decline to intrude in state criminal prosecutions. On appeal, the U.S. Court of Appeals for the 2nd Circuit concluded that Younger does not apply, but it still agreed with the district court that the subpoena could be enforced. The court of appeals made clear that although it was not deciding “the precise contours and limitations of presidential immunity from prosecution,” “presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President.” Trump went to the Supreme Court, which agreed to weigh in last December.

As in the case of the congressional subpoenas, Trump characterizes the state grand-jury subpoena as “unprecedented.” Not only does it seek, he tells the justices, “to compel the production of an enormous swath of the President’s personal financial information,” but the district attorney has “pointedly refused to eliminate the President as a target for indictment.”

The text, structure and history of the Constitution make clear, Trump writes, that while a president is in office, only Congress can hold him accountable for wrongdoing. It is particularly important, Trump argues, that the president be immune from state and local prosecution while he is in office, because the “risk that politics will lead state and local prosecutors to relentlessly harass the President is too great to tolerate.” Allowing a president to be subject to criminal process while in office, Trump alleges, also could distract him, making it harder for him to carry out his duties, and could create a stigma that “will frustrate his ability to effectively represent the United States in both domestic and foreign affairs.”

In its “friend of the court” brief supporting Trump, the federal government argues that a state grand-jury subpoena for a sitting president’s personal records should be subject to a high bar. Such a subpoena should only be enforced, the government contends, if the evidence that the grand jury is seeking is “directly relevant to issues that are expected to be relevant to the trial” and is not available from any other source – a standard that the subpoena in this case cannot meet.

Vance dismisses Trump’s clam of immunity as “novel.” What Trump is seeking, he asserts, is immunity “from providing evidence of private, potentially criminal acts that largely predate his presidency,” even if the investigation is necessary to preserve evidence. But presidents are not categorically immune from a state grand-jury subpoena for documents that do not relate to their official duties.

Trump’s claim of immunity relies on an opinion from the Department of Justice indicating that the president cannot be indicted or prosecuted while in office, Vance observes. But this should not lead to the conclusion that the president cannot be the subject of an investigation, which involves “significantly different concerns.” For example, Vance offers, responding to a subpoena is “far less burdensome than facing indictment or prosecution,” while grand juries provide a secrecy that avoids the “stigmatic harm” that often results from an indictment or prosecution.

Vance concedes that the president may be able to shield some of the information that the grand jury seeks – for example, by arguing that communications are privileged. He can also argue that a grand-jury subpoena would interfere with his ability to carry out his duties. But he hasn’t done either of those things here, Vance reminds the justices.

What’s more, Vance continues, conferring absolute immunity on the president would impose “severe” costs. If evidence is lost while the president is in office, the president would be effectively immune from prosecution even after his term is over. Moreover, Vance notes, the statutes of limitations could expire for other potential defendants about whom the grand-jury subpoenas might seek evidence, even though there would otherwise be no bar to prosecuting them.

UPDATE: The Supreme Court added a new wrinkle to the congressional-subpoena cases earlier this week with a request for additional briefing that will be due just four days before the May 12 oral argument. In a brief order on Monday, the justices instructed the parties to the cases and the federal government, which filed a “friend of the court” brief supporting Trump, to file supplemental briefs addressing whether courts should stay out of the fight over the subpoenas because it is fundamentally a dispute between the branches of government. If the justices were to conclude that the cases are that kind of a dispute, they could dismiss them without ruling on the merits. The next steps could then depend on how Trump’s accountant and lenders respond: Without a ruling in his favor from the Supreme Court, Trump might not be able to block them from turning over his records, but on the other hand Congress might not be able to enforce the subpoenas if the companies refuse to comply. Monday’s order does not address the New York grand jury case. But even if the court rules against the president in that case and the subpoena for his tax returns is ultimately enforced, grand jury secrecy rules would likely mean that the records would remain under wraps for some time – at the very least, until after the 2020 election.

A decision in the cases is expected by summer.