In July, the Supreme Court issued a decision — Trump v. Vance — on the topic of presidential immunity. In it, a 7-2 vote by the Supreme Court affirmed the long-recognized principle that a sitting president is not above the law but is subject to investigation for criminal conduct and the demand for subpoenas in such an investigation. The Court did leave open the possibility of contesting the subpoenas on more specific terms, which President Trump has done. A lower court ruling was issued on this on October 6, 2020, and the case may return to the Supreme Court.
This article will provide a summary of the Supreme Court opinions (majority, concurring, and two different dissenting) issued in the first Trump v. Vance appeal and of recent developments in the case.
Questions to Consider:
While it is tempting to evaluate the correctness of a Supreme Court decision based entirely on whether you agree with its result, it is not just the result but its legal underpinnings that can have a profound effect on our nation. It is worth taking the time, then, to understand the Court’s reasoning; it is the reasoning that will dictate future Court opinions.
How should we balance what we consider to be a desired result with its effect on future constitutional law and on the balance of power among the co-equal branches of our government?
What differences in approach do you see the four opinions take? What are the positives and negatives of each, and which, ultimately, is the best way to consider the questions presented? For example, you could perhaps compare the majority’s functional approach and emphasis on precedent with Thomas’s focus on the text and history of the Constitution or Alito’s concern about federalism and the federal government’s supremacy over the states.
High-Level Background and Summary:
In 2019, a subpoena was served on Mazars USA, LLP, President Trump’s personal accounting firm, in conjunction with a grand jury investigation into possible insurance and bank fraud and the payment of hush money to Stormy Daniels. The subpoena sought financial records related to Trump and his businesses (Trump v. Vance, 140 S.Ct. 2412, 2420). Though the subpoena had not been served on him, Trump sued to prevent Mazars from releasing his financial records to the grand jury.
All subpoenas can be challenged for various reasons, usually including bad faith, undue burden, or overbreadth. There are also constitutional reasons a sitting president might be able to challenge a specific subpoena. However, President Trump did not make any of these arguments. Instead, he contended that a sitting president has absolute immunity from state criminal process under Article II and the supremacy clause of the Constitution. In the alternative, Trump argued that even if the president does not have absolute immunity, a criminal subpoena related to a sitting president should only be allowed if the state can prove that there is a critical need for the subpoenaed information. Id. at 2424-25.
Question
Do “Article II and the supremacy clause categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting president?”
Holding (the legal principle to be drawn from the decision of the court)
A sitting president does not have absolute immunity from state criminal subpoenas, and no heightened need standard is necessary for such a subpoena. President Trump may still challenge the subpoena in the lower court on any of the grounds an ordinary citizen would have access to, as well as any constitutional grounds that may apply to this specific subpoena.
Despite the concurring and dissenting opinions, the Court was unanimous that there is no absolute immunity from state criminal proceedings and that the president should have an opportunity to make other subpoena-specific arguments in the lower courts. Justices Gorsuch, Kavanaugh, and Alito would have required a heightened need standard (though they disagreed about the details).
For even greater detail into the various opinions, see below under Reasoning,
Recent Developments:
After the case was sent back to the lower court, and in accordance with the Supreme Court’s ruling, President Trump filed a second complaint arguing that the specific subpoenas issued by the New York grand jury were politically motivated, overbroad, and therefore invalid. The lower court found the second complaint did not allege new grounds for invalidating the subpoenas and dismissed the case, leaving the subpoenas in force. The judge rejected President Trump’s request to put the decision on hold until he could appeal. The next day, President Trump filed an emergency request asking the court of appeal to stay the enforcement of the lower court’s dismissal of the case. The appeals court refused but did agree to expedite oral arguments on the emergency stay, which it then granted on September 1. Oral arguments for President Trump’s appeal of the dismissal of the case were heard on September 25, 2020.
On October 6, 2020, the 2nd Circuit Court of Appeals upheld the lower court’s ruling and found the subpoena to be properly issued. The court ordered President Trump’s records to be produced but continued a stay on that order to give President Trump time to appeal to the Supreme Court.
Current Status:
President Trump has another chance to argue that the specific subpoenas issued by the New York grand jury are invalid, as opposed to what he argued the first time — that he is simply immune from them. Whatever the Supreme Court decides, President Trump’s documents are not likely to make it to the grand jury before November’s election, and they will certainly not be available to the public by then.
See below for even greater detail into the reasoning behind the opinions.
Majority Reasoning:
Immunity from the subpoena
It is already well established that a sitting president can be subpoenaed in federal criminal court proceedings. This question first arose in United States v. Burr, Aaron Burr’s 1807 trial for treason, in which President Jefferson was required to respond to a subpoena issued to him for certain private letters. In that case, Justice Marshall, noting that only kings are exempt from subpoena, held that the president remains subject to the provisions of the Constitution, including those that concern court proceedings and subpoenas. Justice Marshall dismissed concerns that responding to the subpoena might distract President Jefferson from his official duties (Trump v. Vance, 140 S.Ct. at 2422-24).
Every president since Jefferson — including Presidents Monroe, Grant, Ford, Carter, and Clinton — has abided by this decision, submitting to the federal court process when subpoenaed. When, in United States v. Nixon, President Nixon challenged the authority of the Watergate special prosecutor to issue a subpoena for official presidential communications (as distinguished from the subpoena of Jefferson’s private letters in Burr), the Court rejected his argument of absolute immunity for presidential communications and required him to respond to the subpoena. The Court in Nixon emphasized the importance of the public interest in “fair and accurate judicial proceedings,” particularly in the criminal context. Id.
However, all of this precedent concerned federal criminal proceedings. President Trump argues that state criminal proceedings should not be treated the same. He asserts that a president should have complete immunity from state criminal subpoenas while in office. Id. at 2424-25.
Article II of the Constitution “guarantees the independence of the Executive Branch,” giving the president duties “of unrivaled gravity and breadth” that necessitate “protections that safeguard the president’s ability to perform his vital functions.” Id. at 2425. Thus, for example, the president is absolutely immune from liability for his official actions. The Constitution also guarantees the federal government’s independence from control by the states and prohibits the states from interference with the laws enacted by Congress. “It follows that States also lack the power to impede the President’s execution of those laws.” Id. Trump argues that, unlike federal subpoenas, state criminal subpoenas pose a unique burden for three main reasons.
Distraction: In Nixon v. Fitzgerald, the Court recognized that presidents have absolute immunity from liability for their official acts. Reasoning from this, President Trump asserts that responding to a state criminal subpoena would similarly distract the president from his duties. This, however, is not an accurate reading of Nixon v. Fitzgerald, in which the concern was distorting the president’s decision-making process, not distracting him. Indeed, in Clinton v. Jones, the Court expressly rejected the idea of absolute immunity due to distraction. Id. at 2425-26.
Moreover, President Trump concedes that state grand juries are permitted to investigate a sitting president but just not to subpoena him. As a result, his argument relies entirely upon the claim that a subpoena by itself is impermissibly distracting. Yet two hundred years of precedent shows that subpoenas do not cause debilitating distraction. Id. at 2426-27.
Stigma: President Trump also argues that the stigma associated with being subpoenaed would undermine his leadership. “[E]ven if a tarnished reputation were a cognizable impairment, there is nothing inherently stigmatizing about a President performing” the fairly common act of responding to a subpoena. Id. at 2427. Indeed, it is an important public duty, one which prior presidents have performed. There is nothing about state subpoenas that are any more stigmatizing than federal subpoenas. Moreover, “longstanding rules of grand jury secrecy aim to prevent the very stigma the President anticipates.” Id.
Harassment: Finally, President Trump argues that requiring a sitting president to be subject to state court process will make him or her targets for harassment by political opponents and others unhappy with the president or the president’s actions. The Court rejected a similar argument in Clinton v. Jones because federal courts have the power to prevent or dismiss frivolous lawsuits. However, President Trump points out that, unlike federal prosecutors, state attorneys and district attorneys are not accountable to the president or the executive branch. Id. at 2427-28.
Although state criminal subpoenas could theoretically be used to harass the president and undermine the independence of the executive branch, in practice there are already sufficient protections against this. Specifically, grand juries are prohibited from engaging in “arbitrary fishing expeditions” or acting “out of malice or an intent to harass.” Id. at 2428. In addition, the supremacy clause “prohibits state judges and prosecutors from interfering with a President’s official duties. Any effort to manipulate a President’s policy decisions or to retaliate against a President for official acts through issuance of a subpoena would be an unconstitutional attempt to ‘influence’ a superior sovereign ‘exempt’ from such obstacles.” Id. Finally, “federal law allows a president to challenge any allegedly unconstitutional influence in a federal forum.” Id. Together, these safeguards are sufficient to protect the president from harassment by subpoenas. Id. at 2428-29.
Heightened standard
Nor is there a need for a stricter standard in the issuance of a subpoena to a sitting president. The solicitor general, who submitted his own brief, argued that a subpoena under these circumstances should only be allowed if the state can show that the evidence sought is “critical” for a decision about making criminal charges, is a last resort in which the evidence is not otherwise obtainable, and is needed immediately, as opposed to at the end of the president’s term. Though Justice Alito argues in his dissent for accepting this standard, the majority disagree for three reasons. Id. at 2429.
First, the standard requested by the solicitor general and championed by Justice Alito is the same standard used for subpoenaing the president’s official papers (in contrast to the private/personal papers that are the subject of the present subpoena). However, this approach is not consistent with the precedent set in Burr, which specifically distinguished between subpoenas for official presidential communications, in which the president receives deferential treatment, and subpoenas for private papers, where the president is treated as an ordinary person. Id.
Second, President Trump has not shown that a heightened need standard is necessary for him to fulfill his duties as president. The only justifications President Trump offers for such a standard are the potential for harassment, which the Court already addressed, and unspecified “unwarranted burdens” imposed specifically by state subpoenas. Id. “But that double standard [between federal and state subpoenas] has no basis in law.” Id. If the state subpoena is not issued to manipulate the president, the subpoenaed documents are not protected by presidential privilege, and the president is not actually impaired, “then nothing in Article II or the Supremacy Clause supports holding state subpoenas to a higher standard than their federal counterparts.” Id. at 2430.
Moreover, there is a strong public interest in favor of full access to all evidence in law enforcement and criminal proceedings. Id.
The president may still challenge the legality of the subpoena in all of the same ways an ordinary citizen would be entitled to, as well as on constitutional grounds that are available only to him as president but that are specific to the subpoena in question (e.g., that this specific subpoena is an attempt to influence him, in violation of the supremacy clause, or that complying with this specific subpoena would impede the performance of his constitutional duties). Id. at 2430-31.
Kavanagh/Gorsuch Concurring: The Court is unanimous that the president does not have absolute immunity from state criminal subpoena and that the case should be remanded to district court, where Trump may raise any constitutional and legal objections. However, although “no one is above the law . . . a court may not proceed against a President as it would against an ordinary litigant.” Id. at 2432. The question, then, is how to balance the interests of the state with the interests of the Constitution. The long-established standard for subpoenas seeking official, privileged executive branch information requires that the state provide a “demonstrated, specific need.” Justices Kavanagh and Gorsuch would apply that higher standard here, but, as five justices rejected this heightened standard, they instead concurred in the decision, noting this point of disagreement with the majority. Id. at 2432-33.
Justice Thomas’ Dissent: Though Justice Thomas technically dissented from the majority’s holding, in reality, his conclusions are very similar to the majority’s, though his reasoning is a little different.
Justice Thomas notes that the subpoena is a “troublingly broad request” for 10 years of the presidents’ personal financial records. Id. at 2433. Justice Thomas agrees with the rest of the Court that the president is not entitled to absolute immunity from the issuance of the subpoena but indicated that he may be entitled to relief from its enforcement. Rather than affirming the lower court’s decision as the majority does, Justice Thomas argued that the subpoena should be vacated and the case remanded if Trump can show that “his duties as chief magistrate demand his whole time for national objects.” Id. at 2434. (The majority’s decision still allows Trump to request the subpoena not be enforced, so in effect the opinions are quite similar.)
Justice Thomas’s reasoning is based on the text of the Constitution “as understood by the ratifying public” at the time of the Constitution’s adoption. Id. ar 2434. For example, the Constitution explicitly provides certain immunities to members of Congress but says nothing about absolute immunity for the president, which would suggest such immunity was never intended. Furthermore, documents from the time the Constitution was ratified also suggest no intent to grant absolute immunity for the president, as does Justice Marshall’s early opinion in Burr, which explicitly rejected any such notion. Id. at 2435-36.
However, Justice Thomas explained, Burr also indicated that a president might still avoid having to comply with a validly issued subpoena if he could show that “his duties as chief magistrate demand his whole time for national objects.” Id. at 2436. In determining whether the president has made such a showing, Thomas seems to suggest a great deal of deference be given to the president. Id. at 2436-37.
Justice Thomas also agrees with the majority that no heightened need standard should be used because “[u]nder a heightened-need standard, a grand jury with only the usual need for particular information would be refused it when the President is perfectly able to comply, while a grand jury with a heightened need would be entitled to it even if compliance would place undue obligations on the President. This result makes little sense and lacks any basis in the original understanding of the Constitution. I would leave questions of the grand jury’s need to state law.” Id. at 2439, fn 3.
Justice Alito’s Dissent: Justice Alito’s dissent begins with a recognition that this case has implications for all future presidencies and the very structure of our government and ultimately argues for a heightened standard for issuing subpoenas to sitting presidents. Id. at 2439.
Alito first discusses the president’s broad powers and the imperative of having a “functioning President” at all times. Id. at 2442. He then provides an overview of the relationship between the federal government and states, focusing on the Constitution’s supremacy clause, which makes “the Federal Government . . . within its allotted sphere, supreme over the States.” Id. Alito compares a state’s power to tax to its power to enforce its criminal laws — just as a state may not tax the federal government, “a State’s sovereign power to enforce its criminal laws must accommodate the indispensable role that the Constitution assigns to the Presidency” and preclude the prosecution of a sitting president. Id. at 2444.
Justice Alito argues that the framers of the Constitution knew apPresident needed to be accountable for criminal action; this is why they included provisions on impeachment, which specify that criminal prosecution of an impeached president could occur after the president was removed from office. He further argues that a sitting president being prosecuted by a state would impede the right of the people to a “functioning government.” Id. at 2445. Thus, Alito explains, while “[t]he law applies equally to all persons, including” the president, the application of some laws must wait until the president is no longer in office. Id. at 2446.
Justice Alito agrees with the rest of the Court that a president is not absolutely immune from state subpoenas. However, he advocates for adopting a rule that would “take into account both the effect of subpoenas on the functioning of the Presidency and the risk that they will be used for harassment.” Id. at 2447. He also focuses on a perceived likelihood that criminal investigation would interfere with a president’s duties and that subpoenas would be used to harass a president. Id.
In Justice Alito’s view, “Prior cases involving Presidential subpoenas have always applied special, heightened standards.” Id. at 2448. He contends that a subpoena issued to a sitting president should not be treated like an ordinary subpoena, leaving the president with very limited protections. Alito asserts that the protections and defenses available to a subpoenaed president as touted by the majority are “meager” and undermined by the Court’s dismissal of the constitutional concerns raised by President Trump. Id. at2449. Alito disagrees with the majority’s analysis of Burr and distinguishes the subpoena issued to President Jefferson from the one issued to President Trump. He contends that other precedent involving presidential subpoenas shows “that usual procedures have been substantially altered in cases involving Presidents.” Id. at 2451.
As a result, Justice Alito proposes using a heightened need standard for subpoenas issued to sitting presidents in which the prosecutor seeking the subpoena is required “(1) to provide at least a general description of the possible offenses that are under investigation, (2) to outline how the subpoenaed records relate to those offenses, and (3) to explain why it is important that the records be produced and why it is necessary for production to occur while the President is still in office.” Id. at 2449.
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