Constitutional Literacy: Supreme Court Cases on Presidential Immunity
On Tuesday, May 12, 2020, the Supreme Court heard arguments for three related cases regarding the release of President Trump’s financial records, including tax returns. In the short-term, these cases will decide whether third parties who hold Trump’s financial records are required to release them to investigators in response to congressional and grand jury subpoenas. In the longer-term, these cases will define the contours of presidential immunity from congressional and criminal investigation.
In reading about these cases and considering the rulings when they come out, it is important to remember that when deciding constitutional cases, the Supreme Court must consider not only the specific facts of the case presented — i.e., should third parties associated with Trump have to provide his financial records when ordered to by Congress and a NY grand jury? — but also how the ruling on that case will affect similar cases in the future — i.e., when there is a different president in office, a different Congress, or a different grand jury inquiry, and a different subpoena order, should the president still have to comply and under what circumstances*?
Regardless of what the Supreme Court decides, there can be no doubt that these cases present broad and grave questions not just about presidential immunity but about the separation and balance of powers upon which our government is based.
Because of these complicated and interrelated constitutional questions, it is impossible to fully cover or even summarize all the facts, arguments, legal issues, past cases, and legal doctrines the Supreme Court will be considering. This will likely be easier to do once we have a ruling from the Court (expected some time this summer). Nonetheless, this is an attempt at a summary of the cases and possible implications of their rulings.
Summary of the cases:
— Trump v. Mazars and Trump v. Deutsche Bank are consolidated cases that were heard together. The main question they present is: Are President Trump’s business and personal financial records subject to subpoena by congressional committees, outside of a formal impeachment inquiry?
The parties: Mazars is an accounting firm used by Trump and many of his businesses; Trump, his relatives, and his businesses have long used Deutsche Bank for various accounts, loans, and other financial services. Both companies hold a trove of financial records related to Trump personally, as well as to his various business interests.
The subpoenas: Last year during a hearing for the House of Representatives Oversight Committee, Michael Cohen, Trump’s personal attorney at the time, claimed Trump had misrepresented his assets on certain financial statements. To investigate this claim, the Oversight Committee issued subpoenas to Mazars for eight years of Trump’s financial statements. Similarly, the House Financial Services Committee and House Intelligence Committee issued subpoenas to Deutsche Bank and Capital One (another company providing financial services to Trump) for accounting records from Trump’s business entities and their affiliates and for records from the personal accounts of Trump, his family members, and several of his businesses. Issuance of the subpoenas was justified on the grounds that it would help the committees with investigations into money laundering, financial crimes, and possible foreign interference in the U.S. elections. In both cases, the party that received the subpoenas (i.e., Deutsche Bank, etc.) did not object or refuse to comply; Trump intervened to block them.
— Trump v. Vance is a separate but related case arising from a New York grand jury investigation apparently into campaign finance violations by Trump and some aides, specifically looking at hush money allegedly paid to two women who claimed they had affairs with Trump. Grand jury proceedings are secret by law, so the details here are less clear. As in the prior case, the subpoenas in question were issued to third parties, not Trump himself. The main question raised here is: Can a state grand jury, as part of a criminal investigation, subpoena President Trump’s personal financial records while he is still in office?
Issues and implications of Mazars/Deutsche Bank:
1. Immediate consequences: The most obvious and immediate implication of these cases concerns whether Trump’s financial records will be released to Congress and then possibly released by Congress to the public, which many experts view as likely. Thus far, Trump has steadfastly refused to release any personal or business-related financial information, despite nonbinding precedent set by previous presidents. This, by itself, is a big deal, since Trump has such broad business and financial holdings and has worked so hard to keep his financial details out of the public sphere. That said, without knowing what of significance, if anything, might be found in Trump’s financial records, it is impossible to fully predict the consequences of these records being released, either to Congress or to the public.
2. Supreme Court’s power to decide: Courts only have the power to decide legal questions. If a case presents a question that is fundamentally political, courts cannot decide it. This is called the political question doctrine. Nonjusticiable political questions often involve separation of power issues, conflicts between branches of the government, or questions for which there is no legal or constitutional guidance. The idea is that these issues should be decided through the democratic process rather than by judges. None of the parties is arguing that the political question doctrine applies, but the Court specifically asked the parties to address this issue, so we know the Court is thinking about it.
Implications: Because it is President Trump who is seeking judicial intervention to prevent third parties from complying with the subpoenas of his information, if the Court were to decline to decide the cases on this basis, those third parties would be free to voluntarily provide the information the subpoenas seek, though it is unclear if they would do so (and perhaps unlikely). However, such a ruling would likely prevent Congress from invoking judicial process in the future to enforce congressional subpoenas against the president or uncooperative third parties with information about the president.
3. Congress’s oversight and investigatory powers: All branches of the federal government have to act within the specific sphere of power the Constitution has granted them. Congress has the power to make laws, and its actions must fit within that legislative power.
Trump’s arguments: The congressional subpoenas do not serve a valid legislative purpose but rather are being used for law enforcement purposes (i.e., to determine whether Trump broke the law), which is an executive power. In other words, the subpoenas are not part of any attempt by Congress to enact legislation but rather are designed to investigate/punish him. Regardless, under their own rules, the congressional committees did not have the power to issue the subpoenas. The Court should follow the doctrine of “constitutional avoidance” by invalidating the subpoenas on this ground — that the House rules did not authorize the committees to issue the subpoenas — to avoid having to decide the difficult constitutional questions otherwise presented.
Committees’ arguments: The legislative subpoena power is deeply rooted in American government and history. These subpoenas are similar in content and scope to other subpoenas that have been validly issued by congressional committees throughout history. Moreover, the courts are limited in their power to invalidate legislative subpoenas and cannot do so for alleged improper purposes. Regardless, these subpoenas are supported by multiple legislative purposes and have already led to some bills. Finally, the House rules allow these subpoenas; constitutional avoidance does not apply.
Implications: A ruling against Trump on these grounds could be seen as giving Congress nearly unlimited power to investigate anyone and anything that could possibly be tied to a legislative purpose. Some people, including some of the justices themselves, have expressed concern that this would allow Congress to use subpoenas to harass and attack the president for purely political reasons. In oral arguments, even the more liberal Justice Beyer noted, “What I hold today will also apply to a future Senator McCarthy asking a future Franklin Roosevelt or Harry Truman exactly the same questions. That bothers me.” Of course, as the justices have also mentioned in oral arguments, this is not the first time Congress has investigated a sitting president’s financial dealings. For example, it investigated Bill Clinton’s involvement in Whitewater, but Clinton did not challenge Congress’s authority to do so and turned over his financial records. On the other hand, a ruling for Trump would make it difficult for Congress to fulfill its oversight function. It would allow the president even greater power and Congress less power. As Justice Elana Kagan said during oral arguments, “It seems to me what you’re asking us to do is to put a kind of 10-ton weight on the scale between the president and Congress, essentially to make it impossible for Congress to perform oversight and carry out its functions where the president is concerned.”
4. Presidential immunity: Article II of the Constitution vests “the executive power” in the president of the United States. Because there is only one person who can exercise that authority, the courts have recognized that it is important that the president not be subject to lawsuits or legal process that would unduly impair the president’s ability to do the job he or she was elected to do. The cases developing this presidential immunity have been in the context of private litigation against the president, not congressional investigation, so there is little directly applicable precedent about congressional subpoenas for the president’s records. In addition to presidential immunities from certain kinds of lawsuits (discussed more fully below), the president also has a qualified “executive privilege” to keep certain executive branch communications private, but that privilege applies only to communications relevant to official duties. The privilege can also be overridden by sufficient need, as when President Nixon was required to turn over the Watergate tapes — recorded in the Oval Office — that were needed in the criminal prosecution of other individuals.
Trump/Justice Department arguments: Although the subpoenas were technically issued to third parties, the presidential immunity from legal process also applies to custodians of the president’s records and extends even to investigations of personal conduct/documents if they will affect the president’s ability to perform his functions. In light of this immunity, the congressional subpoenas have to meet an extremely high standard, which they fail to do here.
Committees’ arguments: These subpoenas are not directed at the president and do not require him to do anything at all. Therefore, they do not risk interfering with the president performing the functions of his office, and no higher standard is necessary. Furthermore, the argument that the president is immune from all investigation because it might distract him from his duties is one that has already been rejected by the Court when Bill Clinton used it to avoid a subpoena for a civil suit against him. If a sitting president can be personally called to testify in court for a civil matter brought by a private citizen, his records surely can be subpoenaed from a third party by Congress.
Implications: A ruling against Trump on immunity grounds involves the same concerns as noted above — harassment and distraction of the president. A ruling for Trump on immunity grounds means the president would be almost wholly unaccountable during his time in office, particularly if the Court also ruled in his favor in Vance. He could, as Trump once famously claimed, shoot somebody in the street, and no one could do anything about it, at least until he was out of office. Indeed, Trump’s lawyers have essentially acknowledged that this is exactly their argument — while he is in office, the law does not apply to him.
5. Implications for the Supreme Court’s reputation: After highly charged partisan conflict surrounding the appointment of recent Supreme Court justices and controversial rulings, there is concern that many increasingly view the Supreme Court as a political tool wielded by Trump and the Republican party and not as the nonpartisan, deliberative arbiter of justice it claims to be. In deciding these cases involving President Trump, the Supreme Court will need to grapple not only with making the best constitutional decision, but also with how its decision will be perceived by the public. The most comparable cases — decided against Nixon and Clinton — were decided unanimously, allowing the Court to seem above the political fray and imbuing its decision with much-needed certainty. In the current cases, a non-unanimous ruling — no matter whom it is for — is likely to be viewed as proof of continued partisan bias, especially to the degree the Court is split along ideological lines.
Issues and implications of Vance:
1. Immediate consequences: The requested financial documents would be released by third parties to the New York grand jury, allowing it to continue its investigation of Trump. The ruling would not determine, however, whether New York could actually charge Trump with a crime while he is in office, even if the grand jury determines he likely committed one.
2. Presidential immunity: The Supreme Court has held that Article II of the Constitution provides the president with absolute immunity from civil lawsuits seeking money damages from the president for acts within the “‘outer perimeter’ of his official responsibilities.”
Nixon v. Fitzgerald. This immunity exists to protect the president’s ability to perform the executive functions, particularly in light of the fact that the president is a high-profile target for litigation and for potential politically motivated harassment through lawsuits. The president’s immunity from civil lawsuits based on official acts while in office is parallel to that for federal judges and legislators, who also cannot be sued civilly for official acts taken within the scope of their duties. The president does not have this immunity for actions taken before becoming president (as those cannot be “official acts”), and the Court held, in the context of Paula Jones’ sexual harassment suit against President Clinton, that those cases can proceed while the president is in office. Indeed, the Court held that Bill Clinton could be required to sit for an in-person deposition in that suit while he was the sitting president.
The Court has never extended the president’s immunity against civil suits to the criminal context and has never decided whether a sitting president can be indicted on either federal or state criminal charges. The Department of Justice nevertheless has a longstanding policy that a sitting president cannot be indicted on federal criminal charges. Additionally, some people argue that the Constitution prohibits both federal and state criminal indictment of the president and that the only remedy against a sitting president is impeachment. On this view, the president could be criminally prosecuted only after the four-year term of office or after the House impeached the president and the Senate removed the president from office. Any constitutional immunity a sitting president might have from federal or state criminal indictment does not necessarily preclude criminal investigation of the sitting president or necessarily preclude the president from having to turn over information relevant to the criminal prosecution of alleged accomplices. President Nixon was an unindicted co-conspirator in the Watergate criminal cases when the Supreme Court required him to comply with a judicial subpoena to produce the Watergate tapes.
Trump’s arguments: Trump argues that presidential immunity precludes all state criminal investigations of a sitting president (even through third-party subpoenas), that even a state criminal investigation of a sitting president would be unconstitutionally distracting, that there is more of a constitutional basis for presidents being immune from state criminal investigations than from civil suits, and that there is not a significant enough need for the subpoena in this case. Trump’s lawyers directly made the argument before the lower courts that he could murder someone and would not be subject to criminal investigation or prosecution until he was out of office.
New York’s arguments: Presidential immunity extends only to official acts, and the subpoenas are for information related to private acts. Even if a president is immune from indictment, he is not immune from investigation, which is less burdensome and distracting. There does not need to be proof of a significant need for the subpoena; that requirement applies to claims of presidential privilege, not presidential immunity. Presidential immunity from state criminal investigations while in office could result in loss of evidence, an expiration of the statute of limitations (most crimes have to be prosecuted within a certain amount of time), and an inability of the state to either prosecute or exonerate third parties (for example, if the president has records that show whether another person is guilty of a crime).
3. Supremacy clause: The supremacy clause of the Constitution provides that the Constitution and federal law and treaties are the supreme law of the land and, therefore, supersede conflicting state law.
Trump’s arguments: Because of the supremacy clause, presidential immunity from state judicial process is broader than from federal judicial process. There is no historical precedent for this type of subpoena. Allowing it would place state law above federal law in violation of the supremacy clause and would make it possible for state attorneys from all 50 states to harass the president with countless criminal investigations.
New York’s arguments: The supremacy clause prohibits states from interfering with the president’s official acts; it does not create presidential immunity for private conduct, which is what is being investigated here. There are already many constraints in place that would prevent state attorneys from harassing the president through frivolous criminal investigations.
4. General long-term implications: A ruling against Trump would presumably allow states to investigate alleged criminal, private (i.e., not official) conduct by the president, as well as allowing the states to subpoena private presidential documents or records that bear on state criminal investigations of others. Depending on how broad the ruling is, a ruling for Trump might establish absolute presidential immunity from all state criminal proceedings while a president is in office, and to some degree afterward as well, since lost evidence, forgotten testimony, and statutes of limitations all would make it more difficult to investigate a president years after potential crimes were committed or discovered. In short, a ruling in Trump’s favor could provide near monarchical protection from criminal law, at least while the president is in office.
Decisions on these cases are expected some time this summer. Depending on the timing and scope of the rulings, they may have a significant effect on the upcoming presidential election. They will certainly have serious long term ramifications for the scope of presidential power and both Congress and the Judiciary’s ability to act as a check on that power.
Further suggested reading:
For a detailed summary of the written arguments, see https://www.lawfareblog.com/supreme-court-oral-argument-preview-trump-financial-documents-cases.
For a detailed summary of the oral arguments, see https://www.lawfareblog.com/oral-argument-summary-supreme-court-hears-trump-financial-documents-cases.
For a brief background, see https://www.npr.org/2020/05/12/853450751/supreme-court-to-hear-cases-involving-trumps-taxes-financial-records.
For a brief summary of oral arguments and analysis of the Justice’s comments/questions, see https://www.cnn.com/2020/05/12/politics/supreme-court-trump-cases-takeaways/index.htmla and https://www.npr.org/2020/05/12/851480476/in-cases-on-trump-financial-records-supreme-court-weighs-balance-of-power and https://www.politico.com/news/2020/05/12/supreme-court-arguments-trump-251047.
Maren McEuen is the constitutional literacy specialist at Mormon Women for Ethical Government.
