Symposium: On Trump tax returns, the latest battles may be over, but the war rages on

John Malcolm is vice president of the Institute for Constitutional Government at The Heritage Foundation.

President Donald Trump is one step closer to having to disclose his financial records. But, as Yogi Berra said, “It ain’t over till it’s over.” The fight will go on, and the ultimate issue — will Trump have to disclose and, if so, to whom — will likely not be resolved until after the November election.

First, some background. During his presidential run, Trump broke with precedent and refused to release his tax returns, claiming the IRS was auditing them. Because enough voters didn’t care or didn’t care enough, he was elected.

This has not deterred his opponents from trying to obtain his financial records to see whether they contain embarrassing information or evidence of criminal conduct. California went so far as to pass a law requiring presidential candidates to release tax returns for the previous five years as a condition for getting on the ballot, but it was struck down by the California Supreme Court.  New York tried to do the same (the acronym for the law was the TRUMP Act), but it failed to pass.

Undeterred, several House committees, controlled by Democrats, issued subpoenas seeking to obtain Trump’s financial records from third parties, ostensibly (wink, wink, nudge, nudge) for legislative purposes. The House Committee on Oversight and Reform claimed it needed these records to investigate the adequacy of current financial disclosure laws and whether the president was violating the Constitution’s emoluments clauses. The House Committee on Financial Services and the House Permanent Select Committee on Intelligence claimed they needed the records to investigate possible foreign influence in U.S. elections and to assess the adequacy of current laws to minimize such influence. The president argued that these subpoenas were unprecedented and lacked any legitimate legislative purpose.

Meanwhile, Manhattan District Attorney Cyrus Vance, Jr., issued a subpoena to investigate whether the president or his companies violated state campaign contribution laws in connection with alleged hush-money payments to a former model and to an adult film “actress” in the run-up to the election. The broad-ranging subpoena sought financial records for nearly a decade, extending far beyond these well-publicized payments.

These subpoenas — born, one suspects, out of enmity for this president — implicate important issues of separation of powers and federalism, including: the legitimate scope of congressional oversight; the ability of a state prosecutor to investigate and possibly indict a sitting president; whether United States v. Nixon (1974) (which involved a third-party trial subpoena for a federal criminal case not targeting the president) and Clinton v. Jones (1997) (which involved a federal civil action by a private plaintiff for unofficial acts predating the president’s time in office) should be extended to cover records for a state-court criminal inquiry specifically targeting the president; and whether any presidential immunity extends to personal records held by third parties. These are tough questions to which there are no easy answers.

Asking courts to get involved in disputes between the other two branches of government is always a perilous gambit. A win for the president could weaken Congress’ ability to conduct investigations to fulfill its legitimate oversight responsibilities and to explore the need for remedial legislation. A win for Congress could hand legislators a weapon that could be used for purely partisan purposes, hampering the president’s ability to fulfill his unique, weighty and myriad day-to-day responsibilities, foreign as well as domestic. It would also enable any House committee to conduct de facto impeachment inquiries under the guise of exploring some undefined and nebulous legislative objective.

Similar concerns are at stake in disputes between state prosecutors and the president. A win for the president could hamper the ability of state and local prosecutors to investigate anyone in the president’s sphere of influence or the president himself, at least within the applicable statute of limitations. But a win for the prosecutor could hamper and stigmatize a president and subject him or her to vexatious investigations by one or more of the over 2,300 district attorneys — the vast majority of whom are elected — looking to score political points against a president who is unpopular in that D.A.’s jurisdiction.

Moreover, a win for the prosecutor might also constitute an end-run around the Constitution, which implies that a sitting president can be indicted only after his term in office has expired or upon conviction following impeachment. This reading of Article I, section 3, clause 7 (“the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law”) is consonant with views expressed by Alexander Hamilton in Federalist No. 69 and No. 77, and it has been supported by the Office of Legal Counsel during Republican and Democratic administrations.

Faced with these competing interests, the Supreme Court rendered somewhat of a split decision in Trump’s pair of challenges to the subpoenas seeking his financial records. In Trump v. Vance, a 7-2 majority held that Article II and the Supremacy Clause do not categorically preclude, or require a showing of heightened need for, the issuance of a state criminal subpoena to a sitting president. In Trump v. Mazars, the congressional subpoena case, the same 7-2 majority held that the lower courts did not adequately consider the separation-of-powers concerns raised by these subpoenas. In both cases, Chief Justice John Roberts wrote the majority opinion, with Justices Samuel Alito and Clarence Thomas dissenting.

In Vance, the court held that presidents are not absolutely immune from having to provide documents to a state grand jury conducting a criminal investigation. In reaching this conclusion, Roberts relied on an opinion by Chief Justice John Marshall ordering President Thomas Jefferson to produce documents during the treason trial of former Vice President Aaron Burr — an opinion which, he said, had been “accepted” by “successive Presidents.” Roberts also relied heavily on Nixon. And he rejected the president’s argument that a state grand jury should have to satisfy a heightened standard before subpoenaing a president’s personal records.

Justice Brett Kavanaugh, joined by Justice Neil Gorsuch, concurred in the judgment, but they would have required the district attorney to prove a “demonstrated, specific need” for the sought-after materials, the same standard the court applied in Nixon. Thomas argued in his dissent that, while a president is not immune from the issuance of a subpoena, he may be immune from its enforcement. Alito, meanwhile, would have applied a “heightened need” standard,  and he noted that “[b]oth the structure of the Government established by the Constitution and the Constitution’s provisions on the impeachment and removal of a President make it clear that the prosecution of a sitting President is out of the question.” Alito added that while he “assume[s] that the great majority of state prosecutors will carry out their responsibilities responsibly … there is a very real risk that some will not.”

It was not all bad news for the president, though. While declaring that, as the court held in Clinton v. Jones, distraction alone is insufficient to confer immunity, Roberts said the president can still challenge the Vance subpoena in either federal or state court on the grounds that it is overbroad, was issued in bad faith, or “would impede his constitutional duties.” So this battle may be over, but the war continues.

The president fared better in Mazars, which raises separation-of-powers issues because, the court stated, partisanship might prompt Congress to “a demand … aim[ed] to harass the President or render him ‘complaisan[t] to the humors of the Legislature,’” a concern not mitigated by the fact that the subpoenas in this case were issued to third parties. Acknowledging the breadth of Congress’ argument, Roberts wrote that “[a]ny personal paper possessed by a President could potentially ‘relate to’ a conceivable subject of legislation, for Congress has broad legislative powers that touch a vast number of subjects.” He continued, “The President’s unique constitutional position means that Congress may not look to him as a ‘case study’ for general legislation,” adding that “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.”

Roberts concluded that, when Congress subpoenas the president’s personal records, reviewing courts should (1) “carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers”; (2) “insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective”; (3) “be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose”; and (4) be careful to assess the burdens imposed on the President by a subpoena.”

Thomas argued in dissent that “Congress has no power to issue a legislative subpoena for private, nonofficial documents — whether they belong to the President or not. 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.” And Alito noted in his dissent that “legislative subpoenas for a President’s personal documents are inherently suspicious … [and] can easily be used for improper non-legislative purposes,” and that with respect to these particular subpoenas, “there is disturbing evidence of an improper law enforcement purpose.” He added that “courts must be very sensitive to separation of powers issues when they are asked to approve the enforcement of such subpoenas.”

Because the lower courts did not adequately consider “the significant separation of powers issues raised by congressional subpoenas for the President’s information” or utilize the appropriate standard, the case was remanded for further proceedings. It is unclear how the lower courts will rule in light of the Supreme Court’s new guidance. Call this battle a draw or maybe a slight win for the president, but, again, the war rages on.

In a 2006 law review article, Kavanaugh — who early in his career served as an associate independent counsel during the investigation of President Bill Clinton and, later, as staff secretary to President George W. Bush — wrote that, upon reflection, he thought presidents should be immune from civil lawsuits and criminal investigations while in office. Then-Judge Kavanaugh wrote:

Even the lesser burdens of a criminal investigation — including preparing for questioning by criminal investigators — are time-consuming and distracting. Like civil suits, criminal investigations take the President’s focus away from his or her responsibilities to the people. And a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.

We will now see whether, upon reflection and in light of what follows from the court’s opinions in Vance and Mazars, others come to believe that, too.

As Alito wrote in his Vance dissent, “While the decision will of course have a direct effect on President Trump, what the Court holds today will also affect all future Presidents — which is to say, it will affect the Presidency, and that is a matter of great and lasting importance to the Nation.” As all lawyers know, venerated legal maxims are invariably expressed in Latin. Perhaps these opinions and their aftermath will lead to the adoption of a new one: Ius femineae anseri, ius mari anseri est. What’s sauce for the goose is sauce for the gander.