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
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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:

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Notable Replies

  1. The decision upholding the subpoena marks the first — and potentially only — victory among those clamoring for access to Trump’s tax returns.

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

    Win for the rule of law = Trump is NOT king!

    Though too bad the Supremes punted to the lower court wrt to the Congressional access!

    Maybe Roberts is concerned about those sinking polls and wants to buttress Trump’s re-election chances but at the same time and he wants to finesse his “legacy”!

    Let’s take a listen/read from constitutional professor:


    Other entities that need to have their tax returns reviewed would be those tax-exempt megachurches!


    What are the chances that Trump is hiding his tax returns due to him cheating his niece and nephew out of Fred’s estate and that any Russian rubles was just an additional reason?


    Is Trump really worth $10 Billion?


    Another Presidential Misconduct?

    Leave Me A Loan: Trump’s PPP Scandal Exposed


    So now that Vance will see Trump’s tax return in the near future…
    Maybe it is time for him to revisit the Trump SoHo investigation again!

  2. Chiselin’ Trump: “We are ending the riots and lawlessness that has spread throughout our country courts. We will end it now. Today, I have strongly recommended to every governor to deploy the National Guard in sufficient numbers that we dominate the streets courts. Mayors and governors must establish an overwhelming law enforcement presence until the violence justice has been quelled restored.”

  3. Craftily done.

    The President is not above the law, but we are going to delay investigations into the republican President until he is out of office.

  4. Avatar for spin spin says:

    I am going to go out on a limb and say the court got it right. What the house was doing was correct, but the house counsel took an absolutist position, refused to acknowledge limits. So that forced the Supreme Court to lay out a test. That requires a remand. The liberals went along as they did not want a future Republican senate going full Benghazi, and they know the Republicans are more likely to go there.

    Doug letter (house counsel) needs to be fired and someone who understands how courts work hired to represent the house.

    The Vance case was a great win for accountability. Unfortunately, unless they indict trump and put the details in the indictment, trump gets to hide his taxes through the general election.

    P.s. adding a lot more detail to my post:

    I have now read both 7-2 majority opinions (by Roberts, joined by the 4 liberals and Gorsuch and Kavanaugh) carefully (earlier just read them quickly). Wanted to give a little perspective.

    First, the Vance case (allowing the NY DA to subpoena all of Trump’s records) is a clear win. Given that as Trump has shown, he can control the federal criminal prosecution system via corrupt Attorney General, we really need state authorities to address criminality by a president. Vance (who is a competent guy, with a well run office) now gets the records. The problem is that grand jury records are secret. So Trump’s taxes don’t get released. The only way we see them is if Vance indicts Trump, and puts details into his indictment (what is called a “speaking” indictment). I think this is highly unlikely to happen before the election.

    So a win for accountability and democracy, but not necessarily for getting Trump’s taxes before November.

    Second, the house “won” but really lost, the case they had requesting Trump’s financial returns. Trump argued he was immune, and the Court quickly rejected that argument.

    But, the problem was that the House – lead by a general counsel Douglas Letter who is IMHO a total fool – took absolutist positions. Throughout the litigation they argued that as long as they had a letter laying out a “proper purpose” that Courts could not look further. And when pushed at the oral argument as to what limits there were, Letter who was arguing the case (and should never had been let near the supreme court) said there was no limit.

    The Supreme Court does not like no limits. The opinion highlights how the House said no limits, which is a rather direct shot at Letter. And given that republicans have shown a willingness to abuse the congressional investigation process (see Brenghazi) the four democratic judges did not want to empower people who were willing to investigate to embarrass.

    So the result was 7-2, Roberts writing, laying out a series of factors to be considered by courts. The problem was that having taken an absolutist position in the lower court (rather than laying out multiple arguments and evidence as skillful litigators do) there was no record for the Supreme Court to affirm the decision, and they had to remand for further proceedings. These will run well past November.

    A skillful lawyer would have anticipated the factors the Supreme Court reached for, they are all over the cases, and were simply stated by Judge Roberts as:

    "First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. “‘[O]ccasion[s] for constitutional confrontation between the two branches’ should be avoided whenever possible.” Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 389–390 (2004) (quoting Nixon, 418 U. S., at 692). Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. The President’s unique constitutional position means that Congress may not look to him as a “case study” for general legislation. Cf. 943 F. 3d, at 662–663, n. 67.

    Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. The specificity of the subpoena’s request “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.” Cheney, 542 U. S., at 387.

    **Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress’s legislative purpose, the better. See Watkins, 354 U. S., at 201, 205 (preferring such evidence over “vague” and “loosely worded” evidence of Congress’s purpose). That is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency. In such cases, it is “impossible” to conclude that a subpoena is designed to advance a valid legislative purpose unless Congress adequately identifies its aims and explains why the President’s information will advance its consideration of the possible legislation. Id., at 205–206, 214–215. **

    Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena. We have held that burdens on the President’s time and attention stemming from judicial process and litigation, without more, generally do not cross constitutional lines. See Vance, ante, at 12–14; Clinton, 520 U. S., at 704–705. But burdens imposed by a congressional subpoena should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use s-poenas for institutional advantage."

    (bolded text is from the opinion, and is the court’s “test”). Not a lot of soaring rhetoric there, just the kind of thing that any decent lawyer would have anticipated, and built a record of. Court lays out a test to judge the issue. The problem is that the Lower Court did not address some/all of these issue, and/or Letter did not address how each of the potentially relevant factors applied to this case in his brief.

    So while no Trump’s taxes, I have to say, that they fault of this is the democratic appointed house counsel and whomever is directing him. Part of the problem is a series of committee chairs who are (a) not lawyers (or at least not real lawyers), and (b) sort of old school pols. People like Jerry Nadler, Richard Neil, Elliot Engel, are just not capable of doing the kind of detailed work that say Adam Schiff did in the impeachment. And the result is a hash like what they put before the supreme court.

    Put another way, this was not something that the conservative supreme court was going to fix for the democrats.

    There is an old saying that “hard cases make bad laws” and unfortunately, the democrats made this a hard case given how they litigated it, and had the Court just given the House untrammeled power to investigate, well the republican controlled senate or house of the future would have used that power to try to do in a democratic president. And given that Republicans are more likely to abuse the power, it is probably good long term that the Supreme Court set down a test and some limits.

  5. By sending the issue over Congressional oversight back to the lower courts for further review, Roberts’ in his decision did exactly what I predicted, delayed Trump’s taxes from being made public until after the election.

    “Although the decisions were a defeat for Trump, there is a bright side for Trump. Chances are high that the details of his finances will still remain a secret from the public since grand juries operate confidentially and rarely leak. Had House investigators received Trump’s records, it would have been far more likely that some or all of the information would have leaked before the November election.”

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