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Supreme Court Does Not Give Presidents Immunity From Criminal Subpoenas. More Litigation Coming.

BURNSVILLE, MN - APRIL 15: U.S. President Donald Trump speaks at a roundtable on the economy and tax reform at Nuss Trucking and Equipment on April 15, 2019 in Burnsville, Minnesota. At the special Tax Day roundtable Trump gave a defense of his 2017 tax cuts.(Photo by Adam Bettcher/Getty Images)
By Joseph Fawbush, Esq. | Last updated on

The hunt for President Trump's tax returns, the white whale of our time, continues.

The Supreme Court handed down two landmark cases on the separation of powers on July 9th, the last day of the term. The justices unanimously held that President Trump does not enjoy absolute immunity from state criminal subpoenas, continuing 200 years of precedent. In a separate consolidated case, the Supreme Court also held that Congress  likely needed to narrow the requested information in subpoenas it issued to Trump's accounting firm, Mazars USA, when it requested those same Trump tax returns and other financial information.

The upshot is that Manhattan District Attorney Cy Vance can pursue enforcement of his subpoena while President Trump is in office, but President Trump can still contest the subpoenas' scope in lower courts. Congress will also need to continue to litigate to see President Trump's tax returns and other financial information. The public, meanwhile, will not see President Trump's tax returns any time soon, if at all.

Once more unto the breach, dear friends, once more.

Trump v. Vance

President Trump's bold argument that he enjoys absolute immunity from state criminal investigations was met with a resounding defeat. All justices, including the dissents, agreed that the president was not absolutely immune from responding to a state criminal subpoena. But the majority went further:

Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need.

Both President Trump and the Solicitor General argued that a state criminal subpoena of the president should meet a heightened need. Namely, they argued that state prosecutors must show they had no other means of getting the information and that it could not wait until the end of the president's term. However, the majority rejected this approach for three reasons:

  • Historically, that kind of protection is for official documents relating to the office of the president, not for private papers
  • Nothing in the Constitution supports holding state subpoenas to a higher standard than their federal counterparts. Previous cases have established that presidents must comply with federal criminal subpoenas
  • Access to evidence is an important public policy consideration and delay in gathering evidence could lead to spoliation

This does not mean, argued the majority, that a U.S. President does not have any defenses not available to the public. The Chief Justice noted that President Trump can still contest a subpoena as violating the Supremacy Clause if the subpoena would impact his ability to do his job. The President's legal team has already indicated plans to contest the criminal subpoena on other grounds.

Trump v. Mazars USA, LLP

Several Congressional subcommittees have also issued subpoenas regarding President Trump's financial information, including some tax returns. The  situation is unique, as the court noted, as throughout U.S. history, “congressional demands for the President's information have been resolved by the political branches without involving this Court."

In this consolidated case, the Supreme Court held that a “balanced approach is necessary, one that . . . [is] related to, and in furtherance of, a legitimate task of the Congress" and balances the legislative interests of Congress with the powers and requirements of the office of the presidency. Chief Justice Roberts provided courts with several balancing tests:

  • The legislative purpose must warrant “the significant step of involving the President and his papers"
  • The subpoena must be no broader than reasonably necessary
  • Congress must offer evidence that a subpoena advances a valid legislative purpose
  • Courts should assess any burdens imposed on the President

The above list is not exhaustive, and courts are free to weigh other factors. Lower courts must now evaluate the subpoenas under this revised standard to determine whether these Congressional subpoenas were properly limited in scope.

What It Means

The President's lawyer, Jay Sekulow, and District Attorney Cy Vance both claimed victory. President Trump, however, did not, tweeting the highly questionable legal argument that “Courts in the past have given 'broad deference'. BUT NOT ME!"

President Trump has expressed disappointment at recent Supreme Court decisions decided this term. However, his legal argument that U.S. Presidents are immune to criminal subpoena's was always expected to be a long shot to win. Meanwhile, President Trump can keep his tax returns away from the public eye for the near future.

It is almost certain that the electorate will not see President Trump's tax returns prior to the November election. Should President Trump lose in November, Constitutional arguments against the subpoena would disappear. If he wins, litigation will continue. One thing is certain, however: state district attorneys can subpoena presidents in criminal investigations. The remaining issues involve the scope of the subpoenas, not the subpoenas themselves.

Once President Trump leaves office, he could not only be required to comply with almost any subpoena, like the rest of us, but also be prosecuted. If that were to occur - which is not clear at this time, as the criminal investigation is still ongoing - the chances of his tax returns eventually becoming public are reasonably high.

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