The U.S. Supreme Court, in a series of decisions over time, has taught Americans that their constitutional rights are limited. There is a guarantee of free speech, for example, but not to cry fire in a crowded theater. This week, the high court taught the president and Congress that their constitutional powers have limits, too.
The lessons came in the two rulings issued by the Justices in President Donald Trump's challenges to a state criminal subpoena and subpoenas by three U.S. House investigating committees for his tax returns and other financial documents. The court looked to history, tradition, prior rulings, and the structure of our Constitution to answer those challenges.
The court's decisions are worth reading and will be examined, written about, and discussed for years to come. They are strong precedents that will survive long past the Trump presidency. Let's take them one at a time.
In the case called Trump v. Vance, the Manhattan district attorney's office, acting on behalf of a grand jury, served a subpoena on Trump's personal accounting firm for his personal and business financial records. In the Supreme Court, Trump's personal lawyer and the U.S. Justice Department basically made two arguments. Trump's lawyer: the president has "absolute immunity" from the criminal process; Justice Department: prosecutors must meet a "heightened need" standard for issuing a subpoena to a sitting president.
The 7-2 majority, in an opinion by Chief Justice John Roberts Jr., rejected both arguments. In reaching that decision, Roberts first turned to a maxim that dates to a 1742 English parliamentary debate: "the public has a right to every man's evidence." That is true of our justice system, he said, and since the earliest days of the Republic, he added, "every man" has included the president. His evidence?
Roberts, who loves history and enjoys telling a good story in his opinions, recounted in detail how Aaron Burr, charged with treason, sought to subpoena then-President Thomas Jefferson for a document crucial to his defense. Jefferson resisted, arguing a president could not be subject to such a subpoena. The great Chief Justice, John Marshall, said the president does not “stand exempt from the general provisions of the constitution” nor, Roberts added, "in particular, the Sixth Amendment’s guarantee that those accused have compulsory process for obtaining witnesses for their defense."
Turning to more contemporary evidence, Roberts noted that for the next 200 years, successive presidents, including Monroe, Ford, and Carter, accepted Marshall's ruling that a president is subject to subpoena. In 1974, the court rejected President Nixon's attempt to block a subpoena for Oval Office tape recordings, among other things. Roberts said the court in the 1997 case Clinton v. Jones reiterated its Nixon ruling as “unequivocally and emphatically endorsing Marshall’s” holding that presidents are subject to subpoena.
But those examples involved federal criminal proceedings. Trump's lawyers argued a state criminal proceeding imposed different burdens on a president: a diversion from duties, stigma, and harassment. Roberts addressed each and found sufficient protections existed within the judicial system.
Roberts also rejected the argument that prosecutors must meet a "heightened need" test for issuance of subpoenas, an argument he called a "double standard" for state versus federal subpoenas.
"If the state subpoena is not issued to manipulate, the documents themselves are not protected, and the Executive is not impaired, then nothing in Article II or the Supremacy Clause supports holding state subpoenas to a higher standard than their federal counterparts," wrote Roberts.
A president, like ordinary citizens, can still challenge a subpoena for bad faith, undue burden, or overbreadth, added Roberts. A president also can make "subpoena-specific" constitutional challenges. But the bottom line of the majority's ruling is a complete repudiation of the arguments by Trump's lawyers and the Justice Department: Nothing in Article II of the Constitution or the Supremacy Clause grants absolute immunity, or requires a heightened standard for issuance of a subpoena to a president.
In the second case, Trump v. Mazars, the court confronted a separation of powers dispute between the executive and legislative branches. Three U.S. House investigating committees issued subpoenas to Trump's accounting firm and two banks for financial documents of Trump, his family and businesses. They offered different justifications but basically claimed they had legitimate legislative purposes for the information.
Roberts, who again wrote the opinion for a 7-2 majority, also again rejected the standards for issuing the subpoenas urged by Trump's lawyers, the Justice Department, and the lawyer for the U.S. House as well.
Trump and the department said the House committees must show the information sought satisfies a "demonstrated, special need" and is "demonstrably critical" to a legislative purpose. But that standard, wrote Roberts, has been applied to executive privileged information and should not be "transplanted" to nonprivileged, personal information. Applying that standard, he explained, could seriously impede Congress in conducting inquiries to obtain information needed to legislate.
The House had argued that the committees need only show that the information sought had a "legitimate legislative purpose." But, Roberts wrote, that standard aggravated separation of powers concerns because it offered no limits on the congressional power to subpoena a president's personal records.
Historically, Roberts noted, disputes between the two political branches over congressional demands for presidential documents had been settled by compromise without involvement by the Supreme Court. But not this time.
Since there had been no compromise and neither side offered a standard that respected the duties and powers of the other branch, Roberts said a "balanced approach" was necessary. Courts drawn into this dispute should consider four factors, most of them designed to ensure more specific justifications by Congress for the information sought by the subpoena.
Because the lower courts that had ruled in favor of the House committees failed to adequately consider separation of powers concerns, the majority vacated those rulings and sent the dispute back to the lower court for further consideration.
There is a tendency to announce quickly the winners and losers in Supreme Court decisions. Some court watchers claim Trump lost the state grand jury subpoena decision but won the House case. Others contend he won both cases because the cases will continue to be fought now in the lower courts and the public is unlikely to see any of the subpoenaed information before the November election.
But two clear winners do emerge from those decisions. The Constitution is one: the court reaffirmed that "no man," including a president, is above the law, and it ruled that neither Article II nor the Supremacy clause grants a sitting president absolute immunity from a state criminal subpoena.
And the second winner is the Supreme Court itself. In these two cases brought against a hyper-partisan backdrop, Roberts led a cross-ideological majority, including Trump appointees Neil Gorsuch and Brett Kavanaugh, to rulings that navigated those roiling partisan waters and left the public with the image of an independent Supreme Court.
Marcia Coyle is a regular contributor to Constitution Daily and the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 20 years.
