By Steven R. Shapiro, Former ACLU Legal Director & Sam Shapiro, Partner, Emery Celli Brinckerhoff & Abady LLP
Donald Trump, who often behaves as though he has never read the Constitution, received an important civics lesson from the Supreme Court yesterday when it ruled in two cases involving his personal financial records, including tax returns that he has long sought to conceal, that there is an important difference between being president and king. As the Supreme Court emphatically – and on this point, unanimously – reminded us all, the president may occupy the highest office in the land, but he is not above the law.
Chief Justice Roberts wrote the Court’s opinion in both cases. The first case, Trump v. Vance, arose when a New York State grand jury investigating possible financial crimes issued a subpoena to the President’s long-time accountants, requiring production of the President’s own tax returns as well as tax returns filed on behalf of various of his business entities. Grand jury proceedings are secret, and the Manhattan District Attorney has refused to say whether the President himself is a target of the investigation. He has said, however, that the grand jury is looking into the conduct of “multiple individuals.”
The second case, Trump v. Mazars, began when three congressional committees issued subpoenas seeking tax and other financial records from two banks with which Trump has done business in addition to his accounting firm. The congressional subpoenas were issued as part of ongoing inquiries into foreign interference with the 2016 presidential election and the possible need to strengthen federal laws addressing money laundering, terrorism, and conflicts of interest.
Donald Trump’s response was to file federal lawsuits in both New York and D.C. insisting that each of the subpoenas was invalid and therefore none of them could be enforced. He lost that argument in the lower courts and he has now lost it in the Supreme Court. The two cases nonetheless presented different claims and the Supreme Court approached them differently. The ACLU filed amicus briefs in both cases.
Trump’s position in the grand jury case was that he is absolutely immune from state judicial process (meaning a subpoena) while in office even if, as here, the subpoena solely concerns his conduct as a private individual unrelated to the performance of any presidential duties and even if, as here, the subpoenaed documents are relevant to the grand jury’s investigation of other individuals and organizations.
No one on the Supreme Court accepted that position, and with good reason. Since the early days of the Republic, as Chief Justice Roberts put it, presidents have been required to produce evidence in federal criminal proceedings. It was true for Thomas Jefferson when Aaron Burr was on trial for treason. It was true for Richard Nixon when a grand jury sought the Watergate tapes. And it was true for Bill Clinton during the Whitewater investigation. Donald Trump’s tweeted complaint following the Supreme Court’s decisions that other presidents in similar situations have received judicial deference, “BUT NOT ME,” is not only self-pitying, but wrong.
Indeed, as the Supreme Court recognized, Trump’s claim to absolute immunity was considerably weaker than in the Watergate case, where President Nixon had claimed executive privilege over conversations that took place in the Oval Office. Trump did not and could not claim executive privilege over his private business affairs. For that reason, the Supreme Court also rejected Trump’s plea to apply the same heightened standard of need that it had applied to the Watergate subpoena. But, like every other recipient of a grand jury subpoena, Trump remains free to argue that the subpoena is unduly burdensome or was issued in bad faith.
The congressional subpoena case involved a different set of concerns and a different balancing of interests by the Supreme Court. In contrast to a 200-year history of presidential compliance with criminal subpoenas, Chief Justice Roberts began his opinion in Mazars by pointing out that the Court had never previously addressed a congressional subpoena for information concerning the president. Rather, he noted, such disputes have historically been resolved by negotiation between the political branches.
Writing on a clean slate, the Chief Justice articulated two important principles at the outset. First, Congress’s power to obtain information through subpoena is a necessary and important adjunct to its power to legislate and conduct oversight of the executive branch. Second, the power to investigate is subject to limits to prevent a recurrence of the abuses that occurred most notably during the McCarthy era. The most important of those limits is the requirement that a congressional subpoena be pertinent to a valid legislative purpose.
Citing Watergate again, Trump argued that something more should be required when the president is involved. Again, the Court disagreed, reiterating the distinction between an inquiry into the president’s conduct in office and his conduct as a private citizen. The standard proposed by the President, the Court noted, “would risk seriously impeding Congress in carrying out its responsibilities.”
The ACLU accordingly argued in its amicus brief that the congressional subpoenas were proper and should be upheld. The Supreme Court took a different course, sending the case back to the lower courts for a closer look at whether the information Congress was seeking could be obtained elsewhere and whether the subpoenas could be narrowed.
As a practical matter, that means that Congress is unlikely to obtain any documents before the upcoming election unless the parties can settle the dispute, which would undoubtedly be the Court’s preferred resolution but seems even less likely given the current toxic political environment.
That outcome has led some to describe the congressional case as a political victory for Trump, even if his legal position did not prevail. But it would be a mistake to underestimate the significance of the fundamental principle that underlies both of yesterday’s decisions, or the fact that a Court that is so frequently fractured was unified in recognizing that Trump’s broad claim to presidential immunity is incompatible with our constitutional democracy and the system of checks and balances that was designed to preserve it.