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The Court Got The Trump Subpoena Cases Exactly Backward

Credit: The Atlantic

On the last day of its 2019 term, the Supreme Court decided two cases about the degree to which President Donald Trump’s personal financial records are subject to subpoena by two different investigating bodies. In Trump v. Vance, the Court rejected the president’s claim that he is immune from state grand-jury subpoenas while in office, and even rejected the contention that such subpoenas must meet a higher standard than those issued to ordinary citizens.

Trump v. Mazars, by contrast, concerned subpoenas issued by several congressional committees. There, the Court likewise rejected the view advanced by President Trump, which would have applied the established test for executive-privilege cases even though the documents in question are not privileged. But the Court also said that these congressional subpoenas raise genuine separation-of-powers concerns, which the lower courts had not taken seriously enough. Thus the Court sent Mazars back to the lower courts for consideration under a new standard, one that offers the presidency more protection against congressional investigation.

Most of the commentary on these two cases has focused on who “won” or “lost,” and indeed, that is somewhat difficult to parse, particularly in Mazars. But while their practical effect on President Trump’s effort to keep his financial records secret is of the greatest immediate political concern, the two decisions are also interesting for what they say, taken together, about how the Court sees the different institutions involved, and the relationships among them. Evidently, in almost all of the justices’ view, it is far more appropriate, and raises far fewer concerns, for a state grand jury to investigate the president than for the United States Congress to do so. That outcome was largely expected, especially after counsel for the House of Representatives seemed to stumble at oral argument; indeed, a common prediction was that President Trump would lose Vance but win Mazars.  

The Court’s view has this pecking order precisely backwards. There are genuine constitutional concerns when a state grand jury subpoenas a sitting president, even if the Vance opinion compellingly explains why those concerns do not preclude such investigations. Conversely, there is no meaningful concern when Congress investigates the president, even in his capacity as a private individual, and the Court was wrong to hold otherwise in Mazars.

Let’s start with Vance. The Court’s opinion opens with a long line of precedent—beginning with the treason trial of Aaron Burr in 1807, and reaffirmed during disputes in the Nixon and Clinton presidencies—establishing that the sitting president is amenable to subpoena in federal court. But as Justice Samuel Alito’s dissenting opinion explains, there are real differences when the subpoena comes from a state court instead. In 1819’s McCulloch v. Maryland, Chief Justice John Marshall famously held that states cannot impede, influence, or interfere with the operations of the federal government. (Specifically, McCulloch struck down a Maryland tax on the Bank of the United States.) As Justice Alito says, this principle of federal supremacy surely means that a state cannot prosecute the sitting president, let alone imprison him. That would prevent the president from carrying out his federal responsibilities, which McCulloch forbids. The federal courts have never had an opportunity to decide whether Justice Alito’s position is correct, but most constitutional scholars agree that a state cannot put the sitting president on trial.

The point is not that the Court got Vance wrong. To the contrary, the majority’s reasoning is convincing, and none of the specific arguments that President Trump’s lawyers advanced for why complying with subpoenas would interfere with his official duties holds water. Rather, the point is that Vance raised genuine, weighty constitutional concerns derived from the structure of the federal union. It’s not at all implausible or unreasonable to find a state-government-issued subpoena to a sitting president uniquely troubling, or to think that such subpoenas should be subject to a special rule. The issue in Vance is complex and difficult, exactly the kind of dispute that needs to be resolved by the Supreme Court, and that is just what the Court did.

Mazars, by contrast, should have been an easy win for Congress. But that’s not what happened. Rather, the Court held that a special rule does limit Congress’s ability to investigate the president. But where does this rule come from? Chief Justice John Roberts simply asserts that congressional subpoenas for presidential records raise “significant separation of powers concerns.” He seems to mean nothing more by this than that they involve a confrontation between Congress and the White House, which he would clearly rather not have his Court be dragged into. Hence the opening recitation of a lengthy history, this time dating back to 1792 in the Washington administration, to show that similar disputes have usually been settled through interbranch negotiation and compromise. This history informs Roberts’s refusal to accept that Congress has an essentially unlimited power to investigate the president, which, he notes, would mean that Congress could short-circuit the traditional negotiation process and simply win every time.

Source: https://www.theatlantic.com/ideas/archive/2020/07/court-got-trump-subpoena-cases-exactly-backward/614299/

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