By Stanley M. Brand
Pennsylvania State University
(THE CONVERSATION) — In a 7-2 decision, the Supreme Court has ruled that President Donald Trump has no immunity, by virtue of being president, from a state grand jury subpoena for his business and tax records in a criminal investigation by the Manhattan district attorney.
“[N]o citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” wrote Chief Justice John Roberts in the majority opinion.
The court rejected the president’s claims that permitting subpoenas from state prosecutors would open the floodgates to prosecutors nationwide, distracting him from his presidential duties.
It reiterated what the court had said in a previous case in which President Bill Clinton had tried to avoid giving a deposition, Clinton v. Jones: The Constitution does not require protecting the president from state grand jury subpoenas.
While a victory for Manhattan District Attorney Cyrus Vance Jr., the ruling does send the case back to the lower courts to determine if the president has any other basis available to any citizen to object. The courts typically respect the scope of grand jury subpoenas, and reject attempts to limit them.
And because grand jury proceedings are secret, the public is unlikely to see any of the subpoenaed documents unless Vance charges Trump with a crime.
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Striking a balance
Two companion cases, also decided 7-2, involved congressional subpoenas for some of the same Trump financial records. These were a major test of Congress’ ability to exercise oversight of the presidency.
The court held that concerns about separation of powers in disputes between the president and Congress require the courts to balance the competing interests of both. Since Congress’ ability to subpoena records is tied to its authority to legislate, its demands for materials from a president must be “no broader,” the court said, than is necessary to aid in enacting legislation – especially where that legislation may affect the presidency.
“The more detailed and substantial the evidence of Congress’ legislative purpose the better,” wrote Roberts.
The court sent the two consolidated cases back to the lower courts to apply this new standard. Upholding Congress’ oversight power will require legislative committees to make a stronger and more specific link between the records they want and legislative proposals than they had made before.
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Congressional oversight limits
Not since the “Red Scare” subpoena cases from the 1950s-1960s, where Congress conducted hearings that many called political witch hunts against alleged communists, and the Watergate era in the 1970s, when President Nixon claimed through his attorney that he was “as powerful a monarch as Louis XIV, only four years at a time, and is not subject to the processes of any court in the land except the court of impeachment,” has the Supreme Court taken up such far-reaching questions about the ability of Congress to oversee and check the president’s power.
Congress is investigating whether Trump used his power as president to profit his business, whether he accurately reported his finances as all government employees are required to do and whether he accepted gifts from foreign governments without permission from Congress, which is banned by the Constitution. This ban reflected the framers’ concern that no official be subject to foreign intrigue or influence of any kind – a common practice at the time among foreign sovereigns.
Trump v. Mazars related to those investigations. Trump tried to stop his accountants and the bank he deals with from providing information subpoenaed by two House committees – oversight and intelligence.
Trump objected to these subpoenas on the grounds that they lack a legislative purpose and that their true aim was to obtain personal information for political advantage.
The Court of Appeals rejected this argument. It found that the records the congressional committees wanted were relevant to Congress’ legislative duties, and thus the subpoenas were legitimate.
All subpoenas from, and investigations by, Congress must have a legislative purpose. By law, Congress has the authority to pursue any “subject on which legislation can be had” as well as inquiries into fraud, waste and abuse in government programs. The broad standard for upholding that investigative power is affirmed in the Supreme Court’s ruling in McGrain v. Daugherty in 1927, which established that “the power of inquiry – with process to enforce it – is an essential and appropriate” aspect of how Congress carries out its legislative function.
The case that was consolidated with Mazars was about House committee subpoenas for Trump companies’ bank records from Deutsche Bank and Capital One. As with the Mazars case, Trump tried to stop the banks from handing over the documents.
Those subpoenas were related to reviews by the House Financial Services Committee and the Intelligence Committee of the movement of illicit funds through the global financial system and money laundering. Deutsche Bank, which has loaned large amounts of money to Trump businesses, has already been fined US$10 billion for a money-laundering scheme unrelated to Trump.
The Court of Appeals rejected Trump’s argument and said Congress was legitimately entitled to pursue and get the records.
They wrote that the committees’ focus on illegal money laundering was not on any purported misconduct by Trump but instead on whether such activity occurred in the banking industry, the adequacy of banking regulation and the need for legislation to fix any problems – all legitimate oversight goals.
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Nixon, Clinton precedents
None of these cases involved the president claiming executive privilege – the doctrine that keeps confidential many of the communications between the president and his closest advisers. Nor did the cases involve any challenge to the performance of his official duties.
All concerned only his private business activities before he assumed office. The records from before he was president were relevant because he refused to divest from his businesses, raising the concern of whether his official actions once in office conflict with, or appear to conflict with, his existing business interests.
Two previous Supreme Court cases weighed significantly in the court’s decisions in these cases.
One is United States v. Nixon, which took place during the Watergate scandal, when Special Prosecutor Leon Jaworski subpoenaed the tape recordings of conversations between the president and four of his advisers who had been indicted. President Richard Nixon tried to claim executive privilege, saying the recordings of conversations between him and his advisers were confidential and should not be given to the special prosecutor.
The court ruled unanimously that the need for the tapes in the aides’ upcoming trial outweighed the president’s claim of confidentiality. And although no case applying the Nixon case precedent to a congressional subpoena has reached the Supreme Court, the implication drawn from the case was that if his privilege can be overcome by a subpoena for conversations with his closest aides, business records generated before a president came to office could legitimately be subpoenaed by Congress.
The other case relied on in the Trump financial documents decisions is Clinton v. Jones in 1997. The case stemmed from a sexual harassment suit against Clinton concerning his conduct before his presidency. Clinton had refused to give a deposition in the case, insisting that it would be a distraction from his duties as president and an invitation to litigants to harass any president while in office with lawsuits.
The case description on the Supreme Court website asks, “Is a serving President … entitled to absolute immunity from civil litigation arising out of events which transpired prior to his taking office?”
The court’s answer in 1997: No.
On July 9, 2020, the court gave the same response, this time to presidential claims of absolute immunity to grand jury requests for information in a criminal investigation. And it reaffirmed that, while Congress might have to provide better reasons for asking the president to produce records, it has a right to exercise strong oversight of the presidency.
