The Vance opinion (the case about whether the NY prosecutor can have access to grand jury material for use in a criminal investigation against the Trumps) is here. The case was a loss for Trump. The justices voted 7-2 with only Thomas and Alito dissenting. Think about that: Ginsburg, Sotomayer, Roberts, Gorusch, Kagan, Breyer and Kavanaugh lined up and held that New York prosecutors can have access to Grand Jury material concerning Trump for use in a criminal investigation.
The Mazars opinion (the case about the House’s three subpoenas for Trump’s tax and other financial records) also came out 7-2, with the same lineup. The Mazar’s opinion is here.
Whether we see Trump’s financial records before the election depends on how fast things move.
About the election: Given the fact that we’re in a pandemic that is growing worse because of Trump’s mishandling of it, and given that Trump is going full-on white supremacist, I don’t believe that the release of Trump’s financial information will sway the election. There has been high level reporting that Trump cheats, launders money, and has deep ties— both financially and ideologically—to the Kremlin. His supporters have seen the same evidence and don’t care. The GOP Senators and Congressmen know the facts and have shielded him anyway.
The idea that revealing Trump’s financial information will dissolve the Trump cult flies in the face of everything we’ve seen.
What’s at stake in these cases is something larger. Trump and his team argued that these subpoenas were harassment and that the president should not have to disclose anything he doesn’t want to disclose. Trump’s lawyers actually argued in court that allowing Congress to subpoena the president “undermines” the office of the presidency.
At heart these cases are about balance of power. Team Trump has consistently argued that the president is above the law, nobody can subpoena Trump or pry into his affairs at all. Had we gotten a ruling upholding this silly “unitary executive theory” that the president can hide anything he wants and Congress is completely powerless, we would have been in deep trouble.
Many doomsdayers predicted that the Court (stacked with right-wing justices including two Trump appointments) would uphold this unitary executive theory and give the President imperial power. They didn’t.
Mazars Case: Over the Cliff Notes*
*name suggested by a clever follower on Twitter.
Ready for a close reading of the case? Here we go.
Question presented in this case is: Do the subpoenas exceed the authority of the House under the Constitution?
Basically, it was Trump’s “Nobody can Subpoena me Cuz I’m the Prez” argument.
Team Trump argued that the test for whether he can be subpoenaed should be evaluated by the test given in Nixon, that Congress must show “demonstrated, specific need,” and must show that the information is “critical” to a legislative purpose.
SCOTUS said nope, wrong comparison.
SCOTUS said the Nixon case was about private correspondences between the president and his advisors. This case is not about anything like that. These are financial and other records that can fall under no such privilege.
The Court concluded that requiring Congress to meet the elevated standard suggested by Team Trump would “risk seriously impeding Congress in carrying out its responsibilities. . .” and would give “short shrift to Congress’s important interests in conducting inquiries. . .”
The Court said:
In other words, nope. The president is not immune by virtue of being president. Bye-bye absolute immunity—Trump’s favorite theory that sensible people knew was totally bogus.
At the same time, the Court rejected the idea that Congress has unlimited subpoena power for any of the president’s personal papers for fear unlimited powers could “aim to harass the President.” (Imagine Benghazi on steroids if we have a Democratic president and GOP House)
SCOTUS talked about how historically, these matters have been worked out between the executive and legislative branches. In this decision, we meet our friends Hamilton, Washington, Jefferson, and Burr illustrating the spirit of compromise in which the branches should engage.
The Court didn’t want to make a blanket statement that Congress can have whatever it wants for fear this would end the spirit of compromise in the future: Congress could walk away from any negotiation, having always the upper hand, even though, in this case, it was Team Trump who flatly refused to compromise with the House. But I digress. (As long as I’m digressing, Burr and Hamilton didn’t always compromise. But that’s a different story having nothing to do with Congressional subpoenas.)
The Court distinguished this case from Nixon in that Nixon was about material that fell under executive privilege, defined as safeguarding the public interest in candid, confidential deliberations within the Executive Branch” and thus “fundamental to the operation of Government.”
The court said Trump in this case is entitled to no such heightened protection because there was nothing in his financial records that could fall under “executive privilege.”
The court laid out this test for evaluating the subpoenas:
- The legislative purpose warrants the significant step of involving the President and his papers;
- no other sources provide Congress the information it needs (The President cannot be a general “case study”),
- The subpoena should be no broader than necessary to support the purpose, and
- there shouldn’t be too onerous a burden on the President, where burden on time and energy is not enough to stop a subpoena.
Not hard standards to meet. The court remanded to the lower court for them to apply this test.
As an aside: the Financial Services subpoena may fail these tests, but the two subpoenas from the Intelligence Committee should easily pass the test. That means Schiff got it right.
Why remand for a do-over? Because SCOTUS said the lower courts applied the wrong test.
Thomas dissented. He said Congress should have no power to subpoena the president’s personal documents unless they proceed under the impeachment power. (That was kinda dumb because it will encourage more impeachments, which should be a last resort, not a way to get documents.)
Alito said the House should have an even heavier burden than the majority outlined. He said Congress must provide extensive details about the type of legislation they are considering, yadda yadda.
When Ginsburg was appointed, she was considered a moderate. She is an incrementalist and a proceduralist. It’s actually like her to want procedures followed.
Now that I see the line up (7-2, with Kavanaugh joining Ginsburg), I understand why it took so long. There were lots of discussions over to get to a 7-2 lineup. A lineup l ike this is important because the decision becomes nonpartisan, which helps boost the legitimacy of the Court.
More than one legal scholar today pronounced Roberts and the Court the real winners.
