Supreme Court satisfies neither Trump nor his enemies in financial records cases

Departing from the practice (universal, I think) of modern presidential candidates, Donald Trump refused to make public his tax records. Not good.

Trump’s political enemies contrived to use congressional and prosecutorial authority to force the disclosure of Trump’s financial records. Not good.

Both sets of enemies went to town. They subpoenaed not just President Trump’s records but also those of Donald Trump Jr., Eric Trump, and Ivanka Trump. Not good.

In judicial proceedings challenging various subpoenas, lawyers asserted that the president has absolute immunity from state criminal proceedings. Not good.

This collection of bad behavior landed at the Supreme Court. Today, the Court untangled some of it.

My takeaway is that the Court upheld the rule of law, but denied Trump’s enemies the political victory they craved. And the Court accomplished this without dividing 5-4. The vote in both the local and congressional incarnations of this struggle was 7-2.

The local incarnation was Trump v. Vance, Vance being the New York County district attorney. He subpoenaed Trump’s private accounting firm to obtain financial records pertaining to the president and his businesses.

Trump sued to prevent enforcement of the subpoenas. He asserted that a sitting President enjoys absolute immunity from state criminal process under Article II and the Supremacy Clause. Two lower courts rejected this claim.

Today, the Supreme Court, in an opinion by the Chief Justice, did so, as well. Indeed, all nine Justices rejected it.

The Court also rejected the claim that a state grand jury subpoena seeking a president’s private papers must satisfy a heightened need standard. It is enough, the majority said, that a president be able to “raise subpoena-specific constitutional challenges,” for example, a challenge that the subpoena is “an attempt to influence the performance of his official duties, in violation of the Supremacy Clause.”

Justices Thomas and Alito filed separate dissenting opinions. Alito argued forcefully in favor of applying a heightened need standard.

While rejecting the president’s claims that he is entitled to immunity or, at least heightened protection, the Court remanded the case to the district court for further proceedings, as the federal court of appeals had done. This means that Trump, like any citizen, can raise arguments other than those rejected today against complying with the subpoena.

The practical effect will be that Trump and his family members won’t turn over records to Vance’s office before this year’s election takes place.

The congressional attempt to obtain Trump’s financial records came to a head in Trump v. Mazars, USA.. Three committees of the U. S. House issued four subpoenas seeking information about the finances of President Trump, his children, and affiliated businesses. Each committee made the transparently pretextual claim that the records it sought would help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections.

Various federal courts agreed, and ordered compliance with the subpoenas.

The Supreme Court reversed and remanded. It found that the lower courts did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the president’s information. On remand, the courts must take account of these concerns.

The upshot, again, is that congressional Dems won’t be getting the records they so desperately seek until after the election (if at all).

Chief Justice Roberts writing for a majority that included all four Justices nominated by Democratic presidents, explained that the House’s approach would leave essentially no limits on the congressional power to subpoena the president’s personal records. A limitless subpoena power could transform the established practice of the political branches and allow Congress to aggrandize itself at the President’s expense.

Roberts noted that 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. The interbranch conflict does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity. (See Opinion at pages 14-18)

The majority called for a balanced approach to resolving disputes like this one — an approach that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the unique position of the President. Because the lower courts didn’t use such an approach, the Court remanded the case. In doing so, it sketched out considerations that should be applied. (See Opinion at pages 18-20)

Justices Thomas and Alito again filed separate dissents. Justice Thomas took the position that “Congress has no power to issue a legislative subpoena for private, nonofficial documents—whether they belong to the President or not.” Congress may be able to obtain these documents, but only by using its impeachment power.

Justice Alito acknowledged the force of this position, but declined to go that far. He dissented because he found the terms of the remand inadequate. Alito expressed doubt that the considerations outlined by the majority for the lower courts to consider on remand can be satisfied “unless the House is required to show more than it has put forward to date.”

Neither President Trump nor those who are trying to harm him through the use of subpoenas will be happy with the outcome of these two cases. But that doesn’t mean the rest of us should be displeased.

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