1. ‘Law School 101’: How Supreme Court ended its term
An eventful U.S. Supreme Court term ended yesterday less with a bang than perhaps the thud of a beginner’s constitutional law textbook closing.
In two principles-heavy opinions Chief Justice John Roberts, joined by almost all of his eight colleagues, wrote that President Donald Trump can’t block subpoenas seeking years of his personal financial records from third parties.
To some experts, the opinions showed the high court standing up for the rule of law in general and emphasizing the specific point that no president is above it.
“The legal conclusions of the Court were really ‘Law School 101,’” wrote Kimberly West-Faulcon, a constitutional law professor at Loyola Law School in Los Angeles, in an email. “They read to me a bit like the Supreme Court trying to bring President Trump up to speed on how Presidents have behaved over the last 200 years.”
The president can continue to plead his case in lower courts, and the financial records are expected to remain secret until after the election in November.
But the upshot is that the court has affirmed not only the long-established principle that the president is not a king, but also that Congress has the power – with some restrictions – to subpoena a president’s non-privileged records.
“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,” wrote Chief Justice Roberts in the opinion for Trump v. Vance, the case concerning subpoenas sought by the Manhattan district attorney.
Outside of the fact that the court ruled against President Trump – which had been, until this term, a rarity for the majority-conservative court – neither the decision in Vance nor the decision in Trump v. Mazars, the case concerning the House subpoenas, surprised most court watchers. In a time of stark divisions and political polarization, the Supreme Court acting as the Supreme Court should, they say, is cause for encouragement and optimism.
“The fact the court spoke with such unanimity on these decisions is critical for the court’s credibility, its legacy, and to knit the country back together at a time when our politics has our country so deeply fractured,” says Claire Finkelstein, faculty director of the Center for Ethics and the Rule Law at the University of Pennsylvania Carey Law School.
The Manhattan case
As fundamental as the legal principles were, both cases brought their own novelties.
In Vance, the court was reviewing for the first time whether a sitting president is immune from a state criminal proceeding. The Manhattan district attorney has been seeking from an accounting firm years of financial records from the Trump Organization and Trump-related businesses as part of an investigation into hush money payments from Mr. Trump’s former personal lawyer, Michael Cohen, prior to the 2016 election.
Mr. Trump sued in his personal capacity to block the subpoenas, and throughout litigation in lower courts he claimed that, as a sitting president, he should be immune from state criminal investigations.
Before the Supreme Court, the U.S. solicitor general, arguing in favor of the president, didn’t adopt that argument. What he argued instead was that state grand jury subpoenas must “satisfy a heightened standard of need” for a sitting president’s personal records.
A 7-2 majority of justices rejected both claims.
“If there be a paper in the possession of the executive, which is not of an official nature, he must stand, as respects that paper, in nearly the same situation with any other individual,” wrote Chief Justice Roberts, quoting Chief Justice John Marshall’s ruling in 1807 that then-President Thomas Jefferson had to comply with document requests for Aaron Burr’s trial for treason.
Furthermore, addressing another concern of Mr. Trump and the solicitor general, the court noted that existing laws already prevent state officials and grand juries from harassing the executive branch with arbitrary and frivolous investigations.
“Two centuries of experience confirm that a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties,” wrote Chief Justice Roberts.
Justices Brett Kavanaugh and Neil Gorsuch, both appointed by Mr. Trump, agreed with the majority’s judgment, but wrote in a concurrence that they would have required a state to show a “demonstrated, specific need” for a president’s personal records, as the Watergate special prosecutor was required to.
In a dissent, Justice Samuel Alito argued for even more.
“The Constitution demands greater protection for an institution that is vital to the Nation’s safety and well-being,” he wrote.
Justice Clarence Thomas made similar arguments in another dissent, but Chief Justice Roberts noted in his opinion that the court agreed unanimously that a president isn’t immune from a state criminal investigation. And while he described Justice Alito’s call for heightened protection as a “double standard [with] no basis in law,” he added in a footnote that the majority and Justice Thomas also agree that, while presidents must comply with subpoenas like any other citizen, they can challenge subpoenas for impeding their unique constitutional duties.
“The daylight between our opinion and Justice Thomas’s ‘dissent’ is not as great as that label might suggest,” the chief justice wrote.
The House case
Like the Manhattan district attorney, three House committees issued subpoenas for years of financial records held by third parties for the Trump Organization and Trump-related businesses. Mr. Trump again sued in his personal capacity to block the subpoenas, claiming that the committees didn’t have the authority to issue the subpoenas in the first place.
The novelty here, Chief Justice Roberts explained, is that inter-branch disputes like these have normally been resolved outside court. Here, however – as with many disputes between Congress and the Trump administration – the White House has refused to comply with any requests or subpoenas from the legislature.
Mr. Trump and the solicitor general argued that the House committees failed to establish a “demonstrated, specific need” for the financial records, or outline a clear legislative purpose. The House argued the opposite, and claimed further that the subpoenas weren’t “momentous separation-of-powers disputes,” given they are non-privileged, personal records outside the executive branch.
In a 7-2 ruling, the Supreme Court disagreed with both Mr. Trump and the House. The heightened standards Mr. Trump and his administration argued for make sense for privileged materials, Chief Justice Roberts wrote, but “if applied outside the context of privileged information, would risk seriously impeding Congress in carrying out its responsibilities.”
The House, meanwhile, failed to “take adequate account of the significant separation of powers issues” raised by its subpoenas, the chief justice wrote. Indeed, “the House’s approach [would leave] essentially no limits on the congressional power to subpoena the President’s personal records.”
Both parties made flawed arguments, the court ultimately ruled, failing to identify a suitable way to balance their valid and competing concerns. The court has sent the case back to the lower courts, but with the significant conclusion that, after hearing for the first time the question of whether Congress can subpoena a president’s records, the answer is yes – provided four tests are met.
“There’s no bright line rule, and this does give the president the opportunity to make arguments about interference for as long as he’s going to be president,” says Michael Gerhardt, a constitutional law professor at the University of North Carolina School of Law. But “it should not be surprising if the courts conclude that whatever burden is placed on Trump isn’t as important or weighty as the government’s need for the information.”
Constitutional law clinic
The two decisions may not be total losses for the presidency, both in the short and long term.
The Manhattan district attorney can now access Mr. Trump’s financial records, though the president could appeal again on different grounds. The House committees may also try to reissue their subpoenas in line with the court’s four tests.
But while Mr. Trump may not have a clear victory in either case, the public is unlikely to see his financial records before the presidential election in November. And as Michael Waldman, president of the Brennan Center for Justice, wrote in The Washington Post, the court’s new tests may limit – perhaps even eliminate – Congress’ ability to investigate potential wrongdoing absent a clear legislative purpose.
Still, the two rulings carry great long-term significance, experts say, and they will surely rank alongside other landmark decisions in the court’s history.
The Supreme Court decided two of its most politically charged cases of the term with a clinic on basic constitutional law and history, with the majority seemingly educating the president on the principles laid down 200 years ago by the founding generations whose monument he spoke in front of last weekend.
And at a time of deep political divisions, with public opinion of the court increasingly split along partisan lines, yesterday’s decisions may reinforce the perception that the high court is resisting the urge to join the political fray.
“The Court has stood up for the ‘rule of law’ in general and the specific principle that the U.S. President is not a king,” wrote Loyola Law School’s Ms. West-Faulcon.