July 10, 2020
The Trump Subpoena Cases: More Losses Than Wins for the President, but No One Is Going to See His Tax Returns Soon
Lerner Family Associate Dean for Public Interest & Public Service, George Washington University Law School
This column originally appeared in the George Washington Law Review.
From the perspective of the public, they want to know who won and who lost in the two cases decided by the Supreme Court on July 9th, both by votes of 7-2, and both written by Chief Justice John Roberts. The answer depends on whether you look at the results in the short term, an intermediate horizon, or the long run. But first, a summary of both rulings in Trump v Vance1 and Trump v. Mazars USA, LLP.2
Until he became President, Donald Trump resided and filed tax returns for his family and the Trump Organization in New York. In Vance, a grand jury sitting in Manhattan issued a subpoena for a wide range of financial records that might bear on whether Mr. Trump or his organization committed tax fraud, in particular whether payments shortly before the 2016 election to two women with whom then private citizen Trump had extra-marital relations were improperly deducted on either his personal or business tax returns. Trump claimed that New York could not investigate a sitting President at all, and every justice except Clarence Thomas agreed that the President had no such immunity, and, with the exception of Justice Samuel Alito, that no special rules make it more difficult to subpoena private records of the President than anyone else.
The Court did not order the records turned over immediately to the grand jury because, as the appeals court recognized, Trump had some sub-constitutional defenses that had not been decided by the district court. These include whether the subpoena was too broad or whether any of the records are privileged. That litigation will take a while to conclude, but it is unlikely to reach the Supreme court again. On the other hand, the grand jury is unlikely to see any, and surely not most, of these records before Election Day, with public access way down the road. Thus, if the President’s main goal was—as it seems to be more generally—to avoid all bad news until after November 3rd, he is a winner on that score. But if he is re-elected, he will be back in court if New York tries to indict him, let alone take him to trial as a sitting President. In the long run, this is a win for state prosecutors and also for future independent counsels like Robert Mueller if a President seeks to block even an investigation as Donald Trump did here.
The House subpoenas did not fare as well, at least as issued. They had been issued by three separate committees, two of which wanted the information to be able to legislate on the general subject of money laundering and the other on the subject of conflicts of interest, broadly understood. Like the New York grand jury subpoena, they were very broad and directed to companies that had the financial records of the President and his businesses. The President claimed total immunity, and the House argued that judicial review should be very minimal; the Court found that the answer lay somewhere in the middle. It rejected the President’s claim because that would have seriously undercut the ability of the House to legislate. As for the House position that this subpoena was not different from any other, the Court observed:
“We would have to be “blind” not to see what “[a]ll others can see and understand”: that the subpoenas do not represent a run-of-the mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved.”3
The Court’s response, which Justice Alito criticized as vague and too favorable to the Congress, was to create a “balanced” four-part test that imposed significant, but by no means impossible burdens to enforce a congressional subpoena.4 Those requirements include:
“First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers . . .
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. . .
Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. . .
Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena.”5
These are not the only relevant considerations because “one case every two centuries does not afford enough experience for an exhaustive list.”6
Although the Court did not hold that the congressional subpoenas here failed that test, that is almost certainly what the lower courts should conclude on remand. In essence, the Court told the House to go back and do a better job if it wanted to enforce these subpoenas. Although the contexts are different, the Chief Justice’s insistence here in requiring the House to follow what some would call legal niceties is reminiscent of his 5-4 rulings in the census case in 20197 and the DACA case this year8 when he set aside agency actions of the Trump administration for failing to follow the basic requirements of administrative law.
In the short run, this is a loss for the House. It has to go back almost to square one, and it will surely not get any of these records before Inauguration Day next January. But if it still wants to try to get some (but surely not all) of these records, it can continue the fight (although it may have to re-issue the subpoenas) and seems likely to prevail on the most significant records, whether or not Donald Trump is still President, provided that it is willing to put together a coherent set of reasons why it wants and needs these documents. Even more significant is that Congress now has a roadmap that it can follow when it wants to obtain documents from the public at large, as well as the executive branch. Although the ruling does not deal with official as opposed to private records, it is hard to imagine that if Congress meets the four-part test set forth above, it will not be able to gain access to records that it needs from federal agencies. And with the right to go to court, it will be in a much better bargaining position with the President than it has been to date.
In some ways, the Mazars majority opinion is most interesting because it mentioned “impeachment” only once in passing,9 as did Justice Alito.10 By contrast, Justice Thomas’ dissent was based on his reading of the Constitution under which subpoenas can only be used by Congress in connection with an impeachment, so that if the House had wanted these records, it would have had to announce that it was doing so for that purpose, which Justice Thomas said was more than a “mere formality.”11 The conclusion that I draw is that enforcing a subpoena in connection with impeachment by the House, or trial by the Senate, will be standard and subject to requirements no more strenuous than the four-part test announced in this case—and quite possibly less. That is a major victory for Congress, not for now, but in its long running battle with the President.
So, if you are keeping score, the President won the short-term battle to keep his tax returns and other information away from those who want to see them. But in the long run Congress has been armed with the tools it needs to gather the information that it wants to carry out its legislative responsibilities, although it will have to do a better job of justifying what it wants and why it needs it.
Dean Morrison is the Lerner Family Associate Dean for Public Interest Law at The George Washington University Law School, where he teaches constitutional law and civil procedure.
- Trump v. Vance, No. 19-635 (U.S. July 9, 2020).
- Trump v. Mazars USA, LLP, No. 19-175 (U.S. July 9, 2020).
- Mazars, slip op.at 16-17 (quoting Child Labor Tax Case, 259 U.S. 20, 37 (1922)).
- Id. at 18.
- Id. at 19–20.
- Id. at 20.
- 139 S. Ct. 2551 (2019).
- 140 S. Ct. 1891 (2020).
- Mazars, slip op. at 6.
- Id. at 2 (Alito, J., dissenting).
- Id. at 21 (Thomas, J., dissenting).
Alan B. Morrison, Response, The Bottom Lines in the Trump Subpoena Cases: More Losses Than Wins for the President, but No One Is Going to See His Tax Returns Soon, Geo. Wash. L. Rev. On the Docket (July 9, 2020), https://www.gwlr.org/the-bottom-lines-in-the-trump-subpoena-cases-more-losses-than-wins-for-the-president-but-no-one-is-going-to-see-his-tax-returns-soon/.