After hours of oral argument today, it looks like the Supreme Court may be headed toward a fractured decision in Trump v. Vance. If President Trump’s claims of absolute immunity from legal process prevail, the case could define the fate of American democracy by, in effect, reversing its express rejection of an unlimited monarchy.
The case before the Court is actually three cases, consolidated because they are closely related. They involve requests for information from third parties (not Trump or the White House, mind you) coming from two sources: the United States Congress on the one hand, and the Manhattan district attorney on the other. Democratic-led House committees on oversight, intelligence, and financial services issued subpoenas seeking financial records from Donald Trump’s accounting firm, Mazars USA, and two banks, Capital One and Deutsche Bank. The Manhattan district attorney, Cyrus Vance Jr., likewise subpoenaed several years of tax documents from Mazars.
The various congressional committees served the subpoenas in connection with their interest in the accuracy of Trump’s financial disclosures, the General Service Administration’s management of a federal lease for the Trump International Hotel, possible violations of the Emoluments Clauses, possible money-laundering and loan fraud schemes, the counterintelligence risks associated with efforts by Russia and other foreign governments to influence the U.S. political process, and whether legislative reforms are needed to address these issues going forward. As Justice Ruth Bader Ginsburg noted during today’s livestreamed session, the reason these subpoenas ended up in federal court is that—unlike prior presidents, such as Bill Clinton, who responded to a similar request for information in connection with the Whitewater investigation—Trump did not cooperate.
Vance is investigating possible criminal misconduct in connection with the Trump Organization under New York state law.
Keep in mind that these subpoenas are to private parties—they are not subpoenas directed to an executive branch agency or employee, or to the White House for records relating to Trump’s time in office. They are for information about Trump’s activities while he was a private person. And Trump filed suit to stop the congressional subpoenas in his capacity as a private citizen—not as president. Trump’s three oldest children and a number of his business entities are also listed as plaintiffs in the cases involving Congress.
At bottom, Trump’s claim is that once he became president any private party with information relating to him, his family, and his businesses is forbidden from turning it over in response to lawful subpoenas because Trump, his family, and his businesses are now shrouded in blanket immunity from any legal process at all under Article II and the Supremacy Clause of the U.S. Constitution.
The Supreme Court justices today approached the president’s sweeping argument differently based on the source of the subpoenas. For Congress, the justices seemed worried about greenlighting politically motivated congressional subpoenas with no limiting principle. For the New York case, the justices focused more on the time and energy that a president would have to expend monitoring third parties’ disclosure of his personal records to a state grand jury.
Let’s unpack this a bit.
First, as Justice Clarence Thomas pinned down at oral argument, Article II of the Constitution says nothing whatsoever about immunity for the president. The Framers knew how to grant immunity—as they did with members of Congress going about their official business, via the Speech and Debate Clause of Article I—but they didn’t include any immunity for presidents. While they worried that a president with the power to execute the laws could use it to bully legislators from taking actions he doesn’t like, they were apparently not equally worried about a president’s ability to respond to lawsuits, congressional inquiries, or criminal investigations.
And, as a matter of federalism, even presidents must respect the sovereignty of states and their legal proceedings—a point made by Justice Sonia Sotomayor, observing that the Framers did not extend the president’s pardon power to criminal convictions in state courts.
Second, the U.S. Supreme Court has never held that the president has absolute immunity from legal process. (Presidents do have immunity from civil lawsuits challenging their official acts as president.) To the contrary, both times that presidents tried to hide behind the mantle of the presidency to evade oversight, the Supreme Court didn’t let them. In 1974, a unanimous court required Richard Nixon to turn over tapes of his Oval Office conversations to a federal district court—a ruling that effectively led to the end of his presidency—notwithstanding claims of executive privilege, which aren’t even relevant in the present case because the subpoenas seek Trump-related documents prior to his time as president.
And in 1997, the court unanimously ordered Bill Clinton to sit for a civil deposition in a case alleging sexual misconduct prior to his taking office. No grand jury was even involved in that civil case, which was all about Paula Jones’s claim for money damages from Clinton personally. Clinton’s false deposition testimony led to a contempt of court citation, a $90,000 fine, and the suspension of his Arkansas law license, and was one reason he was impeached by the House of Representatives in 1998. In Clinton’s case, the fact that he was president did not shield him from personally having to take time from his official duties to answer to private lawyers—just like the rest of us who might become embroiled in lawsuits.
But now, Trump is arguing that—even though sitting presidents themselves lack absolute immunity from federal criminal trial subpoenas for Oval Office records and civil deposition subpoenas involving sexual harassment lawsuits by private parties—third parties are precluded from producing information relating to a president’s personal business finances until he leaves office.
If this kind of illogic makes your brain hurt, it should.
Third, the strongest “legal” support for such a position derives from two memoranda issued by the Department of Justice under Nixon in 1973 and Clinton in 2000. In those memos, lawyers in the Office of Legal Counsel (OLC)—who answered to the president—drafted arguments for protecting their bosses from federal indictment as a matter of Article II of the Constitution. Those memos are not laws. They are not statutes. They are not opinions of judges. They are not regulations. They are briefs written by lawyers, and they have been treated with too much reverence and authority as a gloss on the Constitution itself.
At the heart of the “can’t-prosecute-a-sitting-president” memos is the argument that it would be too much trouble for presidents to undergo criminal indictment and prosecution while they are busy running the country. The Clinton memo makes the case that a civil deposition—from which presidents are not immune under Clinton v. Jones—isn’t nearly as taxing as a criminal trial. Maybe so. But that nuance is not in play in Trump v. Vance. Trump is arguing for king-like immunity from any third-party compliance with any oversight at all for himself, his family, and his businesses—prior to any legislation or indictment even being proposed.
My educated guess is that even conservative justices—who might be expected to side with President Trump—will be hard-pressed to read the Constitution as mandating such sweeping protections for the accounting and financial records of the president, his private family members, and his closely held businesses prior to taking office. Ours is a system of separated powers, after all, and Congress is uniquely situated as a check on the presidency—due in part to the unwarranted authority afforded the “non-prosecution” memos from the OLC.
Here’s how things might shake out:
Regarding congressional subpoenas, conservative justices pressed the lawyer for the House of Representatives for a limiting principle—a standard that could be used to distinguish between politically motivated harassing subpoenas and valid subpoenas designed to serve a legislative purpose. They didn’t get one, which suggests that they might feel justified in making one up.
The problem with that would not just be that an express limit on Congress’s subpoena power would enhance the powers of the presidency by hampering congressional oversight, but also that such a rule would enhance the powers of the federal courts over Congress itself. If the Supreme Court decides to manufacture a standard that Congress will have to satisfy in order to subpoena records from third parties implicating presidents, courts could then verge on becoming über-legislatures charged with deciding whether Congress is properly pondering certain legislation.
In the case involving the Manhattan district attorney, Trump lawyer Jay Sekulow made his familiar, circular arguments about unlimited Article II power for the sake of unlimited Article II power. The general counsel for Vance’s office ably retorted that claims of “reckless mania” by state prosecutors are unfounded. Although seemingly sympathetic to the Trumpian point of view, Justice Samuel Alito also asked counsel whether concerns that presidents would be subjected to tsunamis of civil litigation after Clinton v. Jones came to fruition. The answer was no.
At the end of the day, the burden on the presidency in having to comply with valid requests for information in relation to valid efforts at oversight is slim and depends on the particulars of a given situation. Justices Sotomayor, Stephen Breyer, and Elena Kagan convincingly suggested that presidents should do what the rest of us have to do when faced with an overly burdensome subpoena: go to court and ask that it be struck down or limited. In connection with that exercise, presidents can raise the special concerns that only presidents have in juggling the various responsibilities of the office with other pressures on their time.
A blanket, prophylactic bar to any congressional or prosecutorial requests for information from third parties bearing on a president’s private life is not warranted—at least on the facts presented in the Trump v. Vance cases. Yet a nod to presidential immunity from such oversight would mean the Supreme Court’s validation of a quasi-monarchy in America. So much for the views of the Framers and revolutionaries who fought and died to avoid that very outcome.
[Note: The author is a signatory to an amicus brief filed in Trump v. Vance. She is also the author of a forthcoming article in the Stanford Law & Policy Review on the two OLC memos on Article II immunity.]