Mariam Morshedi, July 10, 2020
Procedural Rights Are More Important Than a President’s Desire to Be Unbothered
On July 9, 2020, the Supreme Court declared that President Trump cannot shield his financial records from NY state prosecutors based on a claim of executive privilege. Justice Roberts wrote the opinion with support of the Court’s liberal wing, explaining that a President’s desire to be undisturbed in his executive duties does not overpower the Constitutional right to provide procedural rights to the accused.
The ruling did indicate, however, that President Trump may have other arguments to challenge the subpoenas. The case will return to the lower courts, where Trump may argue that the subpoena causes a specific conflict with his public duties or that the subpoena would “significantly interfere with his efforts to carry out” his duties.
Thus, while the President does not get a general, or absolute, exception to judicial processes seeking his personal information, if he can show that complying would actually (and specifically) impair his duties to function, he may have a case. In response to whether the NY prosecutors will have Trump’s information tomorrow, the answer is no.
In the process of investigating potential state law violations, New York state prosecutors issued subpoenas to President Trump’s accounting firm. The records sought by the subpoena include years of financial and tax records of Donald Trump, Trump family members, and the many companies associated with them.
The subpoenas did not identify President Trump or any other person as the possible targets of the grand jury investigation.
President Trump challenged the subpoena in federal court. The lawsuit asked the court to declare that the Constitution prohibits a state prosecutor from conducting a criminal investigation involving the President. Trump argued the court should declare a sitting president absolutely immune from state criminal process, or at the least that a state criminal subpoena must meet a heightened standard of need in order to get information from a sitting president.
Mazars indicated that it will comply with the subpoena if the federal courts do not invalidate it.
The Supreme Court ruling
The Supreme Court ruled against President Trump’s arguments challenging the subpoena.
Justice Roberts opened the majority’s analysis by recounting the famous treason trial of Aaron Burr. That trial involved the enforcement of a subpoena directed at then-president Thomas Jefferson.
After killing Alexander Hamilton in a duel, Burr fled the northeast in search of new opportunities. Rumors started that Burr was engaged in a plan to separate states from the Union, and his political enemies sought to have him convicted for treason. Thomas Jefferson, then the president, was determined to have Burr convicted so Jefferson provided evidence purporting to show Burr’s involvement in a plot against the nation.
Burr’s legal team then issued a subpoena directed at Jefferson, requesting the president to produce a letter and accompanying documents which could shed light on Burr’s innocence. The prosecution claimed exception to the subpoena, arguing the President cannot be subject to the subpoena and that the letter requested could contain state secrets.
The Supreme Court ruled the President cannot claim exemption from the general provisions of the Constitution. The Constitution’s Sixth Amendment provides that the accused get procedural rights, which includes being able to obtain witnesses for their defense. A President, Chief Justice Marshall noted, is not a King, who is above the law. A President is “of the people” and subject to the law. And thus when he is asked to provide witness, he must comply.
In more recent history, Roberts recounted, Presidents generally comply with such requests. When Nixon refused to comply with the production of tape recordings of Oval Office meetings, the Supreme Court denied him.
President Trump claimed this case is different because this case involves state criminal proceedings, not federal proceedings. He claimed that he, as Chief Executive, cannot be forced to be provide information because the information could 1) distract him, 2) place a stigma on him, and 3) subject him to harassment, all in all inhibiting him from the performance of his executive duties provided in Article II of the Constitution.
The Court rejected each of these complaints in turn. Regarding whether responding to a subpoena could distract a president, it’s not enough, the Court ruled. Distraction alone wasn’t enough in Clinton v. Jones, and it wasn’t enough in Nixon v. Fitzgerald. Even if the president is the one under investigation, an argument that he may be distracted from his official duties is not enough to avoid compliance with judicial process.
Regarding Trump’s argument that the subpoena could place a stigma on him and impair his duties, the Court was not persuaded:
But even if a tarnished reputation were a cognizable impairment, there is nothing inherently stigmatizing about a President performing “the citizen’s normal duty of . . . furnishing information relevant” to a criminal investigation.
Regarding Trump’s argument that subjecting him to state criminal processes could subject him to harassment by state officials, the Court responded that both federal law and state processes have protections against such abuse. State grand jury investigations cannot engage in “arbitrary fishing expeditions”; nor can they initiate investigations “out of malice or an intent to harass.” The Constitution’s Supremacy Clause also protects the president from abuse by state judges and prosecutors. If the president suspects bad faith in the investigation, he may pursue other means of defense. But he cannot claim absolute immunity from state criminal process.
Further, the Court added, there is no heightened standard of need that a subpoena must satisfy in order to gain information from a sitting president. A heightened standard is reserved for official documents of the president; not for his private papers. A heightened standard would not help the president execute his duties any better. If the information of a president is relevant to a criminal investigation and satisfies the general standard, it’s the right of the investigators and the grand jury to seek it.
The Court concludes by noting that the President may still be able to fight the subpoena under grounds of interference with his public duties, but that this case only resolved whether he has an absolute executive privilege or a heightened standard of need — which he does not.
Concurrence: Justices Kavanaugh and Gorsuch
Kavanaugh and Gorsuch concurred in the majority opinion’s decision to deny the president absolute immunity, and they agreed that the case was not over (i.e. that the President still has a chance to prove that the state criminal process is interfering with his duties). However, the concurring justices would have addressed those additional arguments in the context of the case at-hand, rather than ordering that the arguments be raised separately in the lower courts.
Kavanaugh writes that he would have conducted an analysis from the 1982 case Nixon v. Fitzgerald, which required that the president show a “demonstrated, specific need” to avoid the subpoena. The majority opinion may allow the same type of showing, but the majority is requiring the president to raise a new claim in the lower courts to do so.
Justice Thomas dissented from the ruling. He agrees that the president does not have an absolute immunity from the issuance of a subpoena but that the president may be immune from the enforcement of the subpoena. Thomas believes the president should be able to argue against enforcement of the subpoena because the President’s “duties as chief magistrate demand his whole time for national objects.”
Justice Alito dissented because he believes the majority opinion does not credit the President with enough distinction from the ordinary individual. Alito would institute a higher standard of need for subpoenas of the president, and he states clearly that a grand jury investigation involving the president is no ordinary grand jury investigation.