Opinion analysis: Disputes over Trump financial records to continue

This morning the Supreme Court issued its long-awaited rulings in the battle over efforts to obtain financial records belonging to President Donald Trump. By a vote of 7-2, the justices sent a pair of cases challenging congressional subpoenas for the records back to the lower courts for another look, holding that subpoenas involving the president must be subject to a tougher standard than the courts had applied. In a third case, in which the president challenged a subpoena by a Manhattan district attorney, the justices – again by a vote of 7-2 – rejected the president’s claim that he is always immune from state grand jury proceedings while he is in office. But the decision in that case does not mean that the financial records that the grand jury seeks will be turned over: The court sent the case back to the trial court and agreed that the president could still argue that complying with this subpoena would interfere with his ability to do his job. The upshot of today’s decisions is that the disputes are likely to continue in the lower courts for some time; even if the House of Representatives and the New York prosecutor ultimately prevail, neither Congress nor the New York grand jury will have access to the documents anytime soon.

The dispute at the heart of Trump v. Mazars began in April 2019, when three different committees of the House of Representatives issued subpoenas for the president’s financial records. Explaining that it wanted the records as part of an investigation into the adequacy of current government ethics laws, the House Committee on Oversight and Reform sought documents from Mazars, the president’s longtime accountant. The second case, Trump v. Deutsche Bank (argued and decided together with Mazars), arose after the House Committee on Financial Services and the House Permanent Select Committee on Intelligence issued subpoenas to Deutsche Bank and Capitol One seeking records relating to the president, his family and the Trump Organization as part of an investigation into possible foreign influence in U.S. elections.

Trump went to federal court to block Mazars and the banks from complying with the subpoenas, but district courts in Washington, D.C., and New York denied his request, and the federal courts of appeals upheld those rulings. Today, in an opinion by Chief Justice John Roberts, the justices sent the two cases back for another look.

Roberts acknowledged that Congress has the power to obtain information so that it can craft legislation effectively. However, he continued, that power is limited. In particular, congressional subpoenas are valid only if they serve a “valid legislative purpose” and are not intended for law enforcement efforts.

Roberts rejected the argument, made by both Trump and the federal government, which weighed in on Trump’s behalf, that a higher standard – requiring Congress to show that the information is “demonstrably critical” to its purpose – should apply when the president’s records are the target of a subpoena. Applying such a standard here, Roberts explained, “would risk seriously impeding Congress in carrying out its responsibilities.”

But Roberts also spurned arguments by the House that these subpoenas should be treated like any other requests for documents, even though the president is involved, and should be upheld as long as the committees had a “valid legislative purpose.” That approach, Roberts stressed, “fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information.” The fact that the subpoenas request the president’s personal papers, rather than official records, makes the problem worse instead of better, Roberts reasoned: It is precisely because the information in the documents is so personal that Congress and the president care so much about it.

Having found both sides’ proposed tests wanting, Roberts outlined a middle ground for the lower courts in these cases, as well as other courts going forward, to follow. Courts, Roberts instructed, should “perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the ‘unique position’ of the President.” Among other things, courts should consider whether the president’s papers are really necessary (because the information cannot be obtained elsewhere); whether the subpoena is as limited in scope as it can be while still serving Congress’ purpose; what evidence Congress has offered to “establish that a subpoena advances a valid legislative purpose”; and what burdens a subpoena imposes on the president. Because the lower courts did not adequately consider these “special concerns,” Roberts explained, the cases will now return to those courts for additional proceedings.

Justice Clarence Thomas dissented. He would hold that Congress can never issue a legislative subpoena for private, unofficial documents, no matter whom they belong to. “Congress may be able to obtain these documents as part of an investigation of the President, but to do so, it must proceed under the impeachment power.”

Justice Samuel Alito also filed a dissenting opinion. He agreed with his colleagues in the majority that “the lower courts erred and that these cases must be” sent back for another look, but he contended that, under the new test outlined by the majority, the subpoenas should fail “unless the House is required to show more than it has put forward to date.” “Because I find the terms of the Court’s remand inadequate,” Alito concluded, “I must respectfully dissent.”

Today’s second ruling, in Trump v. Vance, stems from a dispute over a subpoena issued to Mazars by Manhattan District Attorney Cyrus Vance as part of an investigation by a state grand jury into criminal violations of New York law. The president asked a federal court in New York to block the subpoena, arguing that it could not be enforced while he is in office. Both the district court and a federal appeals court threw out the president’s request, agreeing with Vance that the subpoena could be enforced. Today the justices rejected the president’s argument that he is categorically immune from state criminal subpoenas, but they sent the case back to the lower courts to allow the president to challenge the subpoena in this case on other grounds.

Roberts again wrote for the majority, in a decision joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Roberts began by refuting the president’s suggestion that he can never be the subject of a state criminal subpoena. In particular, Roberts pushed back against the president’s contention that having to comply with a state criminal subpoena would distract him from his job as president. “[T]wo centuries of experience,” Roberts wrote, “confirm that a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties.”

Roberts was similarly dismissive of the president’s claim “that the stigma of being subpoenaed will undermine his leadership at home and abroad.” Roberts acknowledged that being under a grand-jury investigation could affect public perceptions of the president. But the president has agreed, Roberts stressed, that the Constitution allows such investigations; the mere fact that the president is served with a subpoena is not likely to have much of an effect on the president’s reputation, Roberts posited. And in any event, “longstanding rules of grand jury secrecy aim to prevent the very stigma the President anticipates.”

Turning to the final argument in favor of absolute immunity, the idea that the president could face harassment from the thousands of local district attorneys who might be inclined to try to score political points by investigating the president, Roberts emphasized that the legal system already has safeguards to protect against these kinds of abuses. Grand juries cannot, for example, engage in “fishing expeditions,” and the Constitution, Roberts noted, “prohibits state judges and prosecutors from interfering with a president’s official duties.”

Roberts also declined to adopt a rule, suggested by the federal government, which supported Trump in this case, that would have required state grand jury subpoenas for the president’s private papers to meet a higher standard – demonstrating, for example, that the evidence is “critical,” cannot wait until the end of the president’s term and cannot be obtained elsewhere. He explained that (among other things) adopting that rule would create a double standard, because federal subpoenas to the president, unlike state subpoenas, would be allowed whenever the evidence is material. And more broadly, Roberts concluded, unless there is a need to protect the president, “the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence.” If state grand juries had to meet a higher standard, it would make it harder for them to do their work and could even “prejudice the innocent by depriving the grand jury of” evidence that might show that they were not guilty.

Noting that the arguments in the Supreme Court and the court of appeals had focused on whether the president was categorically immune from state criminal subpoenas, as well as whether the higher standard should apply, Roberts sent the case back to the lower courts – where, he made clear, Trump can “raise further arguments” challenging the subpoena in this case, “as appropriate.” Although Roberts’ analysis might cast doubt on the strength of such arguments, the proceedings in the district court and any appeals that follow almost certainly will take some time, making it unlikely (although not impossible) that the issue will be resolved before the 2020 election. And even if Vance ultimately wins, the secrecy of grand jury proceedings means that Trump’s financial records still would not necessarily become public.

Justice Brett Kavanaugh endorsed the result that the majority reached, if not the majority’s reasoning. In an opinion joined by Justice Neil Gorsuch, he agreed both that the president is not absolutely immune from state criminal subpoenas and that the case should go back to the district court. He would, however, require state grand jury subpoenas like this one to meet a higher standard that would require a showing of “demonstrated, specific need” for the information that the grand jury seeks from the president.

Thomas dissented. He agreed that the president is not entitled to immunity from the issuance of the subpoena, but he argued that the president may be entitled to relief from the enforcement of the subpoena.

Alito also dissented. Describing the “event that precipitated this case” as “unprecedented,” he too would impose a higher standard for state grand jury subpoenas like this one, requiring courts to take “into account the need to prevent interference with a President’s discharge of the responsibilities of the office.” More generally, Alito asserted, today’s decision treats the subpoena at issue like “an ordinary grand jury subpoena” – which it is not. “The Presidency,” Alito argued, “deserves greater protection.”

This post was originally published at Howe on the Court.