President Donald Trump lost twice in court on Thursday when the Supreme Court rejected his sweeping arguments that the president is immune from investigation and subpoena by both Congress and state grand juries. But in a loss for the public, the records being subpoenaed ― which could reveal his tax returns and potential crimes including tax evasion, money laundering and executive branch disclosure violations ― are almost certain to remain hidden until after the election.
The two blockbuster cases, Trump v. Vance and Trump v. Mazars USA, were total losses for Trump, but a more mixed result for the Office of the President of the United States. Trump’s lawyers had argued that the president has a total immunity from subpoenas for his personal records from either an empaneled grand jury or a congressional committee. The court completely rejected these arguments in both cases by 7-2 margins in decisions written by Chief Justice John Roberts. But it set different limits for Congress than for judicial proceedings like a grand jury while enabling Trump to hide his records from public scrutiny during what remains of his first term with continued lower court battles.
In the Vance case, the court upheld the subpoena to Mazars USA LLP, Trump’s personal accounting firm, issued by a grand jury empaneled by Manhattan District Attorney Cy Vance. The court affirmed prior precedent that “the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.” While the court set no new standard for Vance’s subpoena, it ordered the case back to a district court, where the president’s lawyers could change their now-defeated argument to prevent the disclosure.
While the Vance case related to a state judicial proceeding, the Mazars case focused on a separation of powers dispute between two political branches of government. It was the first time the court had “considered a dispute over a congressional subpoena for the President’s records,” Roberts noted in his decision. For its first-ever consideration, the court found the arguments of both Trump and Congress wanting.
It rejected outright Trump’s argument that the president has an absolute immunity from investigation. Congress can subpoena presidential records as part of its legislative power. But it placed limits on congressional subpoena power when it seeks documents from the president and ordered the case back to lower courts to reassess based on the new limiting test created in Thursday’s decision.
“A limitless subpoena power could transform the established practice of the political branches and allow Congress to aggrandize itself at the President’s expense,” the opinion, written by Chief Justice John Roberts, reads. “These separation of powers concerns are unmistakably implicated by the subpoenas here, which represent not a run-of-the-mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved.”
Trump immediately responded in a semi-coherent rant on Twitter by playing the victim. “Courts in the past have given “broad deference”. BUT NOT ME!” he wrote.
“The Supreme Court sends case back to Lower Court, arguments to continue. This is all a political prosecution,” Trump wrote in another tweet. “I won the Mueller Witch Hunt, and others, and now I have to keep fighting in a politically corrupt New York. Not fair to this Presidency or Administration!”
House Speaker Nancy Pelosi (D-Calif.) said in a statement that the Mazars opinion was “not good news for President Trump.”
“The Court has reaffirmed the Congress’s authority to conduct oversight on behalf of the American people, as it asks for further information from the Congress,” Pelosi said in a statement. “Congress’s constitutional responsibility to uncover the truth continues, specifically related to the President’s Russia connection that he is hiding.”
But the ruling was neither a total win for Congress nor for public accountability.
While the court affirmed Congress’ subpoena power by rejecting Trump’s “presidential immunity” defense, it also rejected Congress’ argument that its subpoena power had no limits.
“The House’s approach fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information,” Roberts wrote in the Mazars decision.
This was a hot topic when the court heard arguments on the case by teleconference on May 12. As Congress’ subpoena power is linked to its constitutional authority to write legislation, the justices wanted to know if the House would offer up any limits on what legislation it could write, and, therefore, what records it could subpoena.
Roberts asked Douglas Letter, counsel for the House of Representatives, for a “plausible example that you think is beyond any legislation that Congress would write.” Letter could not provide an example.
And so Roberts has now written a five-part limiting test for courts to use to determine whether a congressional subpoena for presidential documents is valid.
The test mandates that courts first consider “whether the asserted legislative purpose warrants the significant step of involving the President and his papers” before they “insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.” Courts should then be “attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose” while also assessing “the burdens imposed on the President by a subpoena.” Finally, and most cryptically, “Other considerations may be pertinent as well.”
This is the test that lower courts must now use to determine whether the three House committees that have subpoenaed Trump’s financial records may do so. And it will also likely be applied in other high-profile lawsuits related to House subpoenas or legal requests for Trump administration testimony or financial documents. The continued delay presented by the new legal test in adjudicating these disputes has displeased lawmakers who have sought Trump’s documents.
The Supreme Court had allowed Trump to “run out the clock” on the various lawsuits Democrats had filed to enforce their subpoenas, Rep. Bill Pascrell (D-N.J.), a member of the House Ways and Means Committee said.
“The Supreme Court has failed the American people, but these decisions are not the end,” Pascrell said. “The lower courts should move full steam ahead and expeditiously authorize Congress’s oversight of Trump’s tax returns.”
While tax returns might be part of the Trump financial information sought through subpoenas to third-party financial institutions, Democrats have pursued Trump’s taxes more directly in a separate case.
The House Ways and Means Committee sued for copies of the president’s taxes last year after the Trump administration refused to comply with a federal law granting certain congressional committees access to private tax information. That case is still stuck at the lowest level of federal court, where a Trump-appointed judge has refused to rule on the merits until a higher court sorts out whether a House subpoena can force testimony from former White House counsel Don McGahn.
Even before Thursday’s Supreme Court ruling, it seemed unlikely Democrats would get Trump’s tax returns before November, thanks partly to their own decision to wait until last July to take the administration to court. Now Democrats, who have maintained federal law entitles them to Trump’s taxes, may have to lay out their case according to the new John Roberts standard.
While dissents from Thomas and Alito could be anticipated on these cases, the decision by Justices Neil Gorsuch and Brett Kavanaugh to side with the majority and against Trump stand out the most. Trump appointed both justices and has repeatedly called them 'my judges.'
The Democrat-run House has engaged in a number of efforts to conduct oversight on Trump and his administration, but has been repeatedly stonewalled by the president, with the help of his GOP allies. The House voted to impeach Trump earlier this year, but the Senate voted against removing him from office.
Justice Clarence Thomas wrote in his dissenting opinion in the Mazars case that he would have ruled that Congress may only subpoena private records from the president, “under the impeachment power.” The Trump administration notably refused to comply with congressional requests and subpoenas for documents and testimony as part of its impeachment inquiry.
In a separate dissent, Justice Samuel Alito argued that Roberts’ majority decision did not go far enough in its test Congress must meet when it subpoenas private records from the president. He would have preferred it “provide a description of the type of legislation being considered” and “spell out its constitutional authority to enact the type of legislation that it is contemplating.” (The House subpoenas in question made repeated reference to introduced legislation and passed in 2019.)
While dissents from Thomas and Alito could be anticipated on these cases, the decision by Justices Neil Gorsuch and Brett Kavanaugh to side with the majority and against Trump stand out the most. Trump appointed both justices and has repeatedly called them “my judges.” His judges are in opposition to what Trump calls “Obama judges.” He appears to see judicial appointments entirely as a partisan exercise that is linked to personal loyalty, and clearly believes his judges owe him deference and favorable opinion.
Trump’s allies have even made this argument explicitly about then-potential efforts by Congress to obtain the president’s financial records.
“[W]e’ll see whether or not the Kavanaugh fight was worth it,” former House Speaker Newt Gingrich said in 2018.
Trump’s judges did not come to his rescue. The president was left to shout into his favorite void, tweeting, “Courts in the past have given “broad deference”. BUT NOT ME!”