President Trump’s initial outraged reaction to the Supreme Court’s decisions in the presidential subpoena cases surprised no one, but determining winners and losers in these cases requires going beyond the Supreme Court’s bottom lines. Indeed, although he lost on his core claims in the grand jury case, Trump v. Vance, Trump emerged mainly as a winner. Other winners include the Congress, even though the House saw its committees’ subpoenas nullified in Trump v. Mazars, grand juries, the Supreme Court, Chief Justice Roberts, and the rule of law, including especially the constitutional system of checks and balances, which was left pretty much unscathed by the results. Losers include the presidency and House Democrats. It remains to be seen whether, when the dust has settled, we should consider Cyrus Vance, the New York district attorney, a winner or a loser. Let me explain.
Trump’s victory: Keeping his tax returns hidden until after the election.
Assessing President Trump’s status requires us to know his goals. If his goal was to maximize the power of the president and to ensure that a sitting president was immune to subpoenas from grand juries and the Congress, he lost big time. His most grandiose claims for presidential power and executive authority were rejected by the Court, and the vote wasn’t close. But if his primary concern was, as I believe it was, to ensure that his financial records, including especially his tax returns, remain hidden until after the November election, then he won big time. In Mazars he won a complete victory since the House subpoenas were, in effect, quashed, although formal quashing awaits action by the D.C. Circuit Court. New House subpoenas cannot be crafted and survive the court challenges they will face soon enough for the House to secure any documents before the election. Indeed, if Trump is reelected and a new Democratic House seeks again to get his financial records, it will probably be several years before the legal issues raised by new subpoenas will be resolved.
In Vance, the case he nominally lost, Trump’s political victory seems nevertheless almost as complete. Although the Court ruled against him on his broad immunity claims, it left the door open for objections to specific subpoenaed documents based on grounds open to any litigant, like the claim that the subpoenas are intentionally harassing, unduly burdensome or issued in bad faith, as well as on grounds specific to the executive, such as the claim that the subpoenas are designed to interfere with the president’s official duties or will impede him in carrying out those duties. Regardless of how these issues are resolved on remand, there seems no chance that the issues left open will be resolved before November.
Moreover, in a significant sentence, the Court gave President Trump another potentially important victory. It specifically acknowledged his ability to bring complaints seeking to suppress the subpoenas to either state or federal court. Since Trump has now appointed about 200 federal judges, even if the original trial judge is assigned the case on remand, there is a good chance that as the case wends its way back through the system, judges sympathetic to Trump will have a say in the outcome. Trump also won some smaller doctrinal victories in Vance. In particular, the Court recognized that separation of powers issues exist even when it is the president’s personal papers that are sought, and it regards as irrelevant the fact that subpoenas for a president’s papers are directed to third parties rather than to the president.
Except to the extent that his subpoena was politically motivated, the New York district attorney, Cyrus Vance, neither wins nor loses at this point in time. That determination will turn on what documents he is able to acquire and how soon he gets them. Ultimately, he will probably be able to get most of what he sought.
Congress’s victory: A president is not immune from a congressional subpoena
The Congress wins because in Mazars the Court held that a president cannot prevent the House from acquiring his papers if the papers are sought pursuant to a properly drawn subpoena. Executive authority and the separation of powers do not render a president immune from a congressional subpoena. Moreover, the Court rejected the argument that Congress must establish a “demonstrated specific need” before a president can be required to turn over his records. It pointed out that this standard, drawn from U.S. v Nixon, which the Solicitor General advocated, involved subpoenas seeking privileged information and does not apply in cases like Trump’s, where no privilege has been claimed.
The Court did, however, establish special standards that a congressional subpoena must meet when a president’s records are sought. These are: (1) “[C]ourts should carefully assess whether the asserted legislative purpose warrants … involving the President and his papers.” Specifically, “Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs to achieve its legislative objectives.” (2) To prevent unnecessary intrusions into the Office of the President, subpoenas should be “no broader than reasonably necessary to support Congress’s legislative objective.” (3) “[C]ourts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose,” particularly when the contemplated legislation “raises sensitive constitutional issues, such as laws concerning the Presidency.” (4) “[C]ourts should be careful to assess the burdens imposed on the President by the subpoenas.” The court also left the door open for additional standards, noting that, “one case every two centuries does not afford enough experience for an exhaustive list.”
House Democrats lose
If Congress, and by extension the House, won, the same cannot be said for the House Democrats. They have been thwarted in their political objectives. Absent leaked information, they now have no chance of acquiring the president’s financial records before the coming election. They also lost in that the shabbiness of their preparation for this clash of titans was exposed. The House committees at the start of their investigations could have constructed narrower, better-justified subpoenas for the records they sought. Instead prominent Democrats, upon gaining control of the House, openly celebrated the investigations they could launch. Later, when they were ready to issue subpoenas, they phrased their record demands broadly, described their documentary needs in general terms, and allowed different committees to issue identical subpoenas, suggesting a scattershot rather than a targeted approach to acquiring information. Next time the House (and the Senate) should realize they need to consult their best lawyers before, rather than after, they attempt to subpoena personal presidential documents.
Presidential immunity to subpoenas loses
If Trump won in what I expect matters most to him, concealing his financial records through the election, the same cannot be said of the presidency. Limits on the power of presidents to resist subpoenas directed to them are clearer than they have been. Although presidents can expect that by virtue of their office they will be accommodated in ways other persons would not be, they cannot claim immunity to subpoenas issued in connection with judicial proceedings or congressional investigations, nor can they expect that rules that apply to others will not apply to them. Moreover, the Court has given Congress a blueprint describing what it must do if it seeks to subpoena a president’s papers. But the decisions’ costs to the presidency are not huge. Although presidential immunity to subpoena is ruled out, substantial protection against frivolous or politically motivated subpoenas is mandated, particularly when Congress is seeking the information.
Grand juries won
Grand juries are also winners, and to a greater extent than Congress. The Court was unanimous in holding that grand juries can investigate sitting presidents. Moreover, not only are sitting presidents unable to claim immunity from grand jury subpoenas, but also a grand jury is not obliged to meet a heightened relevance standard when a president’s personal papers are sought. In addition, unlike the situation with Congress, the grounds on which a president can resist grand jury subpoenas are narrow, and for the most part shared by all citizens.
The rule of law, the Supreme Court and Chief Justice Roberts won
The rule of law, the Supreme Court, and Justice Roberts are winners for related reasons. The rule of law wins because the Court once again proclaimed that no person is above the law and that generally speaking the law has a right to every person’s evidence. In an ordinary presidency this might not amount to much, but too often President Trump has acted as if he is a law unto himself, uncontrolled by legal strictures, and he has also, as in the cases just decided, claimed that the law had no right to his evidence. These propositions are specifically rejected. Also, the Court once again reaffirmed its place in the Constitution’s separation of powers scheme—it is the only branch with the power to state finally what the Constitution demands. This reaffirmation is hardly surprising, but it is nonetheless a win for both the Supreme Court and the rule of law.
More importantly, however, the Court is a winner because of the opinions it issued. These opinions, together with the fact that seven justices signed on to each, make Justice Roberts, the opinions’ author, a winner as well. Roberts’ opinion in Vance is well-crafted but not special. Unless the Court was willing to revisit and overturn the precedents established in U.S. v.Nixon. and Clinton v. Jones, the outcome in Vance and the grounds on which it rested were pretty much ordained. Trump’s arguments rested on reeds too slender to bear the weight that the president’s attorneys tried to place on them. This seemed clear at oral argument, and it is clear from the opinion.
The opinion in Mazars is a different story. It breaks new ground, gets the Court out of a bind precedent seemed to have placed it in, is exceptionally well crafted, and without insulating the president from congressional subpoenas, it establishes reasonable, if strict, standards for future congressional efforts to secure a president’s personal papers.
To appreciate the Court’s opinion in Mazars, one must understand prior law. There were two lead precedents, Kilbourn v. Thompson, decided in 1880 and McGrain v. Dougherty, decided in 1927. Kilbourn was authority for the proposition that Congress may issue subpoenas only if it has a legislative purpose. In particular, the Constitution does not allow Congress to subpoena documents or witnesses to expose wrongdoing or to punish. McGrain reaffirmed and made binding what had been dicta in Kilbourn. It also held, however, that if material sought by a congressional subpoena was relevant to possible legislation, Kilbourn’s legislative purpose mandate was satisfied. Moreover, courts should not probe the motivations that led to a subpoena, but should simply ask whether there was a possible nexus between the material sought and an issue on which Congress might legislate. These holdings were cited as controlling precedent in a number of subsequent cases.
Oral argument made clear that the Mazars court had deep concerns with the range of subpoenas precedent allowed, and counsel for the House did not help his case when he was unable to come up with even one example of information Congress might seek that could not in some way be connected to a subject on which Congress could legislate. The concern clearly lingered, for the Court noted in its opinion House counsel’s inability to find an example of a subpoena that would necessarily be out of bounds.
The genius of Robert’s opinion in Mazars is that while endorsing the longstanding precedent that congressional subpoenas must have a legislative purpose and without repudiating the notion that courts should not render judgments based on motives they impute to Congress, the opinion lays down principles which form a more or less objective test (described above) for determining whether material Congress seeks from a president is essential to a legislative task Congress is engaged in. Yet it manages to leave in place the highly deferential standard that leads courts to ignore suspect congressional motives when Congress seeks material outside of the separation of powers context.
If the standards the Court lays down were not reasonable ones, I would not be celebrating the Mazars opinion in this commentary. But they make sense. Congress should be able to spell out in a subpoena why it needs the documents it seeks. It should not be subpoenaing presidential papers if it can get the same information from other sources. Congressional subpoenas must have a legislative purpose and should be no broader than what the Congress needs to fulfill its legislative mission. The separation of powers and the potential for politically rather than legislatively motivated subpoenas justify particularly close scrutiny of congressional subpoenas seeking presidential papers as well as attention to whether congressional subpoenas excessively burden the executive. Importantly, in laying out these requirements, Roberts’ opinion does not close the door on Congress’s ability to secure information from the president. Rather it provides a road map for how Congress need proceed when it seeks presidential papers by subpoena.
Precedent calls our attention to past cases, but the Court sees its opinions as precedent for the next ones. Here is a potential weakness of the Mazars opinion. Although the standards it enunciates have an objective ring to them, they are still open to considerable subjective interpretation by trial and appellate court judges. What, for example, are excessive burdens on the executive, and what makes a subpoena insufficiently narrow. A strength of the Court opinions in both Vance and Mazars is that the text suggests no obvious political bias, and the notion that the justices’ votes were motivated by political rather than legal considerations seems implausible given the number of justices who signed on to the decisions—three from the Court’s conservative wing and four from its liberal wing. Future cases that flesh out the Mazars standards, including especially lower court level decisions, may, however, suggest that politics is motivating judicial judgments. Still, if cases like Mazars arise only once in two centuries, there is little reason for concern. Unfortunately, only an incurable optimist can be sure that the clash between Congress and the executive that gave rise to Mazars is not a harbinger of clashes to come.