SCOTUS: President Not A ‘King,’ Subject To Criminal Investigations

on December 22, 2017 in Washington, DC.
WASHINGTON, DC - DECEMBER 22: U.S. President Donald Trump talks with journalists after signing tax reform legislation into law in the Oval Office December 22, 2017 in Washington, DC. Trump praised Republican leaders... WASHINGTON, DC - DECEMBER 22: U.S. President Donald Trump talks with journalists after signing tax reform legislation into law in the Oval Office December 22, 2017 in Washington, DC. Trump praised Republican leaders in Congress for all their work on the biggest tax overhaul in decades. (Photo by Chip Somodevilla/Getty Images) MORE LESS
Start your day with TPM.
Sign up for the Morning Memo newsletter

In a striking 7-2 decision, the Supreme Court on Thursday upheld a criminal subpoena issued by the Manhattan District Attorney’s Office for President Trump’s financial records as part of a wide-ranging investigation into the Trump organization.

Chief Justice John Roberts wrote for the majority, decisively rejecting arguments made by President Trump that he was immune from any kind of criminal investigation.

“That argument, however, runs up against the 200 years of precedent establishing that Presidents, and their official communications, are subject to judicial process,” Roberts wrote.

In a separate 7-2 ruling, the Supreme Court delayed enforcement of a House subpoena for similar records.

The decision upholding the subpoena marks the first victory for those clamoring for access to Trump’s tax returns. He is the first President since Richard Nixon not to release the documents, amid well-documented allegations of inconsistencies.

But though the decision upheld the subpoena, Roberts left ample room for President Trump to file further appeals of the subpoena, remanding the case to the district court “where the  President may raise further arguments as appropriate.”

Trump attorney Jay Sekulow suggested that he may move to keep the subpoena from going into effect on separate grounds from those argued in this case, referring to the decision Thursday as having “temporarily blocked” the subpoena from going forward.

Deutsche Bank, the subject of the subpoena, issued a hedged statement saying that it would “abide by a final decision by the courts.”

Roberts wrote in the opinion that the public has the right to “every man’s evidence.”

“Since the earliest days of the Republic, ‘every man’ has included the President of the United States,” he wrote.

The ruling – on to which five justices signed – is written to suggest that Trump’s conduct is a massive aberration in U.S. history extending back to the country’s early years.

Justices Brett Kavanaugh and Neil Gorsuch — both Trump appointees — filed a separate concurrence.

Kavanaugh’s concurrence gave slightly narrower approval to the President’s obligation to respond to criminal subpoenas, forecasting more, similar disputes to come.

“In any event, in my view, lower courts in cases of this sort involving a President will almost invariably have to begin by delving into why the State wants the information; why and how much the State needs the information, including whether the State could obtain the information elsewhere; and whether compliance with the subpoena would unduly burden or interfere with a President’s official duties,” Kavanaugh wrote.

Justices Samuel Alito and Clarence Thomas each filed separate dissents.

Throughout the majority opinion, Roberts made repeated references to “the 200-year history of Presidents being subject to federal judicial process.”

“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,” Roberts concluded in the ruling. “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.”

The ruling starts off with a detailed description of the trial of Aaron Burr, whose subpoena for the testimony of President Thomas Jefferson set the precedent that an overwhelming majority of the court found applicable.

“The President, [Chief Justice John] Marshall declared, does not ‘stand exempt from the general provisions of the constitution,’’ Roberts narrated.

“But, as Marshall explained, a king is born to power and can ‘do no wrong,’” Roberts wrote. “The President, by contrast, is ‘of the people’ and subject to the law.”

Roberts added that “in the two centuries since the Burr trial, successive Presidents have accepted Marshall’s ruling that the Chief Executive is subject to subpoena.”

But the court distinguished between the question of a federal subpoena — which has been conclusively resolved — and a state subpoena of records relating to a sitting president. Roberts pointedly noted that this appeared to be the first case of a state-level subpoena targeting a President to come before the court.

But the opinion strikes down Trump’s argument that he is immune from state criminal process just the same, finding that “two centuries of experience confirm that a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties.”

Trump had contended that state-level prosecutors could “distract” or “harass” him by firing subpoenas willy-nilly – an argument that Roberts dismissed as “run[ning] up against the 200 years of precedent establishing that Presidents, and their official communications, are subject to judicial process.”

Finally, Roberts smacked down Trump’s repeated claims of harassment, pointing out that the federal courts already provide a protection against that in the form of the same judicial review to which Trump has claimed he is not subject.

And though this ruling could give Manhattan prosecutors access to the financial records, they’re unlikely to be released for mass public consumption. They will first be used for Manhattan District Attorney Cyrus Vance’s ongoing probe of the Trump Organization, which reportedly focuses on allegations of falsifying business records.

President Trump may still raise further arguments in the lower court, which could delay access to the subpoena by additional months.

Vance got a subpoena in August for President Trump’s tax returns as part of a broader investigation into the Trump organization. The President — through personal attorneys — quickly challenged the move, arguing that sitting presidents are immune from any kind of criminal process.

At oral arguments in the case in May, Manhattan DA general counsel Carey Dunne argued that the subpoena was “well within the scope of the legal process this court has permitted for generations — going back to 1807” — in part because, Dunne argued, Vance’s office had already cleared a standard needed to establish that the subpoena was a crucial part of the office’s investigation.

Trump attorney Jay Sekulow maintained at arguments that “the President is not to be treated as an ordinary citizen.”

“He’s the President of the United States. He’s a branch of government,” Sekulow argued.

Solicitor General Noel Francisco took the slightly more tailored approach of arguing that prosecutors need to show a “special need” to investigate the President, and contended that Vance’s office had not yet done so.

“The President is the sole person in whom all Article II powers are vested, so he is entitled to a measure of protection above and beyond the ordinary rules,” Francisco argued. “He is the sole person in whom all executive powers are vested.”

In a dissenting opinion, Justice Samuel Alito sided with Francisco, saying that the court should seek to establish a heightened standard for subpoenas relating to a sitting President.

The case ran alongside that of three House panels that had sent Congressional subpoenas to Trump’s longtime accounting firm — Mazars USA LLP — seeking copies of his financial records and tax returns.

Trump’s unprecedentedly broad argument was met with derision as it made its way past federal court in Manhattan and onwards to the Second Circuit Court of Appeals. There, Judge Denny Chin asked Trump attorney William Consovoy whether Trump would be immune from criminal investigation if he were to shoot someone on Fifth Avenue while in office.

“Nothing could be done, that is your position?” Chin asked.

“That is correct,” Consovoy replied.

Read the decision here:

Latest Muckraker
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Editor at Large:
General Counsel:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: