Mazars and Vance, and President Trump’s Ongoing Assault on our Structural Constitution

Steven D. Schwinn*

It’s no secret that President Donald J. Trump has waged a brazen and relentless assault on our constitutional structures of government. Indeed, he may be the first to say so. From his open attacks on the “deep state” to his public disparagement of sitting federal judges to his division of the nation into (favored) “red states” and (disfavored) “blue states,” President Trump wears his constant attacks on the structures of government as a badge of honor. And he uses those attacks as red meat for his political base.

But President Trump’s assault on our constitutional structures extends well beyond his rhetoric. The examples are legion, but here are just a few: He has misused the military for his own domestic political purposes. He has illegally reprogrammed federal funds to achieve his own policy objectives. He has politicized independent agencies for his own ends. He has openly violated federal law, most notably in the areas of immigration and environmental protection. He has strong-armed state and local governments to fall in line with his priorities by threatening, without statutory authorization, to withhold federal funds. The list could go on and on.

These attacks follow a common course of action. First, President Trump lodges an aggressive or even outlandish constitutional claim in support of a new controversial policy. Often, his claim, if ultimately accepted, would dangerously aggrandize the power of the presidency at the expense of the coordinate branches and the states in violation of the separation of powers and federalism. Next, he adjusts his claim, and his policy, in reaction to push-back from Congress, the courts, or the states. But he does so only begrudgingly, often leaving a trail of damage to our structural Constitution in his wake. Finally, he nevertheless achieves his original policy goal, or much of it, by further abusing the coordinate branches and the states.

In addition to following a common course of action, President Trump’s attacks also have a common feature: They exploit the comparative institutional strengths of the presidency and the comparative institutional weaknesses of the coordinate branches and the states. President Trump is all too aware that the modern president wields enormous power. At the same time, he realizes that Congress, the courts, and the states often lack effective institutional powers or cooperative ability to rein him in. (And even when effective institutional powers may exist, they can be frustrated or undermined when the coordinate branches or the states share President Trump’s political objectives.) By exploiting the institutional strengths of the presidency and the institutional weaknesses of the coordinate branches and the states, President Trump can yet further aggrandize his own power at the expense of Congress, the courts, and the states.

All this runs directly against our system of separation of powers and federalism. The framers designed those structural features of our Constitution specifically to protect against tyranny, not to enable it. Under that design, the branches of our federal government push against each other to keep each other in check, and to ensure that no single branch grows too powerful. In a similar way, the federal government and the states push against each other to maintain checks. The constant give-and-take between the branches of our federal government, and between the federal government and the states, protects against any single government body gaining too much power.

President Trump has trampled on these protective structural features of our Constitution in every way imaginable, and in many ways unimaginable. With each passing news cycle, he seems to devise new and surprising ways to run roughshod over the coordinate branches and the states. His entire presidency has become a stress-test of our structural Constitution.

Two cases before the U.S. Supreme Court last Term are emblematic. In these cases, Trump v. Mazars[1] and Trump v. Vance,[2] President Trump challenged congressional subpoenas and a state grand jury subpoena for his financial records. President Trump’s strategy in these cases and their aftermaths had all the hallmarks of his many other attacks on our structural Constitution. First, his constitutional claims, designed to protect his financial records, were aggressive, even outlandish, and plainly violated the separation of powers and federalism. In Mazars, he claimed that congressional committees lacked a legitimate legislative purpose in seeking his records. In Vance, he argued that the president was categorically immune from all state criminal processes. Under President Trump’s theories, the president could simply ignore congressional subpoenas and any state criminal processes, thus eviscerating these critical constitutional checks on the presidency. Next, he adjusted his constitutional claims in reaction to the Court’s rejection of his arguments in Mazars and Vance. On remand in those cases, President Trump raised only more modest arguments, but still arguments that would lead to the same result. Finally, President Trump continues to drag his feet in the courts in an effort to run out the clock and to ensure that his records do not come out before the 2020 election, or ever.

President Trump’s strategy in these cases also share the common feature of many of his attacks on our structural Constitution: They exploit the comparative institutional powers of the presidency and the comparative institutional weaknesses of the coordinate branches and the states. President Trump determined early on that neither Congress nor the state grand jury had any realistic authority to enforce their subpoenas without a court order. He knew that they simply lacked the institutional tools to unilaterally enforce the subpoenas against an intransigent president. He determined somewhat later that the famously slow-moving courts lacked any realistic authority to finally rule against him when it mattered, especially if he dragged out the litigation by, among other things, initially forcing the courts to deal with his aggressive and outlandish constitutional claims.

None of this takes away from the fact that Mazars and Vance together stand as an unequivocal repudiation of President Trump’s most outrageous separation-of-powers and federalism claims. Mazars reaffirms the sweeping authority of Congress to investigate matters that aid in its lawmaking function, including matters involving the president’s private records. Vance reaffirms that the president is not categorically immune from state criminal processes. These rulings are certainly something to celebrate.

But on the other hand, the rulings, by remanding the cases for further proceedings, specifically invite President Trump to continue to evade the subpoenas through the courts. President Trump has already accepted this invitation, and he now continues to ignore and undermine Congress and the state, and to enlist the courts in his obstruction. In the end, despite the coordinate branches and the state all pushing against him, and despite the Court’s rulings, President Trump will succeed in protecting his financial records from disclosure under these subpoenas, at least before the 2020 election and maybe beyond. In the process, he’ll also succeed in undermining Congress, undermining the state grand jury, and undermining the courts.

1. Trump v. Mazars USA, LLP

President Trump’s attacks on our structural Constitution were on full display in Mazars, the case testing Congress’s authority to subpoena his private financial records from his accounting firm and banks—the private records of the sitting president. President Trump sued to halt the subpoenas, arguing that the congressional committees that issued them lacked authority. In particular, he claimed that the committees could not use the records in aid of their legitimate lawmaking functions. Instead, he said that the subpoenas were designed to enforce the law against the president in violation of the separation of powers.

President Trump’s argument was extreme, but it was hardly a surprise. President Trump’s reaction to these subpoenas fit a larger pattern in the Trump administration of frustrating congressional investigations by simply declining to turn over requested documents or make available requested officials. In reaction to different investigations, President Trump and other administration officials variously raised executive privilege; a broader deliberative-process privilege; lack of congressional authority; Congress’s failure to cite the right authority; impermissible congressional encroachment on the president’s unitary authority to enforce the law; and even pure politics (by making certain officials available to the Republican-controlled Senate, but not to the Democratic-controlled House). Finally, there came a point when the administration dropped its pretense, stopped citing reasons, and just declined to produce records or witnesses, without even pretending to offer an explanation.

President Trump’s strategy in reaction to congressional investigations drew on Congress’s comparative institutional weakness—its effective inability to enforce its own subpoenas. As a result, President Trump’s claims allowed him to unilaterally set the scope of Congress’s power to investigate—a shocking encroachment by the executive on the powers of the legislature. In order to avoid this problem, the committees in Mazars sidestepped the president and issued their subpoenas directly to third parties. But President Trump then sued to halt the subpoenas. In doing so, he drew on the comparative institutional weakness of the judiciary: the courts’ inability to rule quickly on cases. In other words, now unable to undermine Congress directly, President Trump turned to abuse the courts in order to run the clock on the subpoenas.

The Supreme Court in Mazars flatly rejected President Trump’s constitutional claims. That ruling stands as an important reaffirmation of Congress’s broad powers to investigate, and a solid bulwark against an executive’s efforts to subvert congressional subpoenas. But at the same time, the ruling opened the door for President Trump to continue to challenge the subpoenas in court. This is exactly what President Trump is doing, dragging out the litigation—and protecting the requested records—past the 2020 election and after the current Congress, along with its outstanding subpoenas, expire. In the process, he effectively undermined the powers of both Congress and the courts.

A. Background

In the spring of 2019, three different committees of the U.S. House of Representatives issued four separate subpoenas to President Trump’s banks and accounting firm for financial documents of President Trump and Trump Organization businesses. The House Committee on Financial Services issued two of the four subpoenas, one to Deutsche Bank (for records from 2010 to the present) and another to Capital One (for records from 2016 to the present). The Committee sought these records in order to help it draft legislation “to close loopholes that allow corruption, terrorism, and money laundering to infiltrate our country’s financial system,” including money from Russian oligarchs that flows into the United States through “anonymous shell companies” and investments like “luxury high-end real estate,” and to “prevent the abuse of the financial system.”[3] The Committee also sought the records to engage in oversight regarding “the implementation, effectiveness, and enforcement” of laws that prohibit money laundering and funding of terrorism.[4] The Committee issued the subpoenas pursuant to House Resolution 206, which called out loopholes “that allow corruption, terrorism, and money laundering to infiltrate our country’s financial system” and noted, among other things, that “the influx of illicit money, including from Russian oligarchs, has flowed largely unimpeded into the United States through . . . anonymous shell companies and into U.S. investments, including luxury high-end real estate.”[5] The Resolution called for “efforts to close loopholes that allow corruption, terrorism, and money laundering to infiltrate our country’s financial system.”[6] In addition to the Resolution, the Committee also relied on its own oversight plan. According to the plan, the Committee intended to “examine the implementation, effectiveness, and enforcement” of laws designed to halt money laundering and the financing of terrorism and to “consider proposals to prevent the abuse of the financial system” and “address any vulnerabilities identified” in the real estate market.[7]

The same day that the Committee on Financial Services issued its subpoenas, the Permanent Select Committee on Intelligence issued a subpoena to Deutsche Bank, but for different reasons. The Intelligence Committee sought to investigate foreign efforts to undermine the U.S. political process, including attempts by Russia to influence the 2016 presidential election and links between Russia and the Trump Campaign. The Intelligence Committee also sought the material to determine whether President Trump or his associates were compromised by certain foreign actors. According to Intelligence Committee Chairman Adam Schiff, the Committee planned “to develop legislation and policy reforms to ensure the U.S. government is better positioned to counter future efforts to undermine our political process and national security.”[8]

Finally, the House Committee on Oversight and Reform issued a subpoena to Mazars for financial documents of President Trump and his businesses from 2011 through 2018, for yet different reasons. The Oversight Committee sought these records to determine, in light of testimony and documents provided by the president’s personal attorney, Michael Cohen, whether President Trump engaged in illegal conduct, whether he disclosed conflicts of interest, whether he violated the Emoluments Clauses of the Constitution,[9] and whether he accurately reported his finances to the Offices of Government Ethics and other government entities. Oversight Committee Chairman Elijah Cummings wrote to the Committee that its “interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction.”[10]

In response, President Trump, his children, and his businesses filed two separate lawsuits against Mazars and the banks seeking to stop the defendants from complying with the subpoenas. The president asserted breathtaking claims: He argued that the subpoenas were invalid, because the committees lacked a legitimate legislative purpose, and that the subpoenas violated the separation of powers by impermissibly encroaching on the Executive’s plenary power to enforce the law.

The lower courts flatly rejected these arguments. In the first case, Trump v. Mazars,[11] the U.S. Court of Appeals for the D.C. Circuit held that the Oversight Committee’s subpoena served “legitimate legislative pursuits,” because it sought information that was relevant to reforming financial-disclosure requirements for the president.[12] The court said that Congress may legislate in this area under the Emoluments Clauses: “If the President may accept no domestic emoluments and must seek Congress’s permission before accepting any foreign emoluments, then surely a statute facilitating the disclosure of such payments lies within constitutional limits.”[13] The court noted that “[t]he United States Code, too, provides ample precedent for laws that regulate Presidents’ finances and records,” and that past presidents have consistently complied with financial-disclosure requirements.[14] Moreover, the court ruled that the subpoena was not based on “an impermissible law-enforcement purpose.”[15] The court noted that the Committee might have had several purposes behind the subpoena, perhaps even including a law-enforcement purpose, but that its legitimate legislative purpose was sufficient to empower it to issue the subpoena.

Judge Naomi Rao argued in her dissent that the Committee sought to investigate alleged illegal behavior by the president, and that it could only pursue this kind of investigation pursuant to its impeachment power—even if the investigation also had a valid legislative purpose. She explained,

When Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress’s legislative power. Throughout our history, Congress, the President, and the courts have insisted upon maintaining the separation between the legislative and impeachment powers of the House and recognized the gravity and accountability that follow impeachment. Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government.[16]

Judge Rao argued that because the Committee intended to investigate alleged illegal behavior by the president, it could do so only pursuant to its impeachment authority. And because the Committee did not issue its subpoenas pursuant to any impeachment power, the subpoenas were invalid. (Judge Rao later argued, in dissent from the court’s denial of rehearing en banc, that the House’s later authorization of an impeachment inquiry did not ratify the Committee’s power to issue the subpoenas, because “the Committee has relied consistently and exclusively on the legislative power to justify this subpoena.”[17]) The full D.C. Circuit denied en banc review.[18]

The U.S. Court of Appeals for the Second Circuit similarly rejected the president’s claims. The court in Trump v. Deutsche Bank AG,[19] ruled that the Financial Services Committee and the Intelligence Committee had valid legislative purposes in seeking the information:

[t]he Committees’ interests concern national security and the integrity of elections, and, more specifically, enforcement of anti-money-laundering/counter-financing of terrorism laws, terrorist financing, the movement of illicit funds through the global financial system including the real estate market, the scope of the Russian government’s operations to influence the U.S. political process, and whether the Lead Plaintiff was vulnerable to foreign exploitation.[20]

It also held that the subpoenas did not impermissibly encroach upon the Executive’s law-enforcement authority:

the Committees are not investigating whether [President Trump] has violated any law. To the extent that the Committees are looking into unlawful activity such as money laundering, their focus is not on any alleged misconduct of [President Trump] (they have made no allegation of his misconduct); instead, it is on the existence of such activity in the banking industry, the adequacy of regulation by relevant agencies, and the need for legislation.[21]

The court upheld the lower court opinion and ordered prompt compliance with the subpoenas. At the same time, it remanded the case to give President Trump an opportunity to object to specific documents that the president claimed contained sensitive personal information and other particular documents from Deutsche Bank.

Judge Debra Ann Livingston dissented on this point. Given the breadth of the subpoenas, Judge Livingston questioned whether the committees truly issued them to advance their legitimate lawmaking functions. She also questioned the historical precedent for the subpoenas and whether Congress was sufficiently careful in authorizing them and attentive to the sensitive separation-of-powers concerns that they raised. “[T]he Plaintiffs have raised serious questions on the merits, implicating not only Congress’s lawmaking powers, but also the ability of this and future Presidents to discharge the duties of the Office of the President free of myriad inquiries instigated ‘more casually and less responsibly’ than contemplated in our constitutional framework.”[22] She claimed that the majority did not grant sufficient weight to these concerns. She would have remanded the case for a closer look at these issues.[23]

The Supreme Court granted certiorari in both cases, stayed the judgments, and consolidated the cases for appeal.

B. President Trump’s Arguments

As he had in the lower court proceedings, at the Supreme Court President Trump raised a breathtaking claim that had no support in the law. He argued that the committees lacked authority to issue the subpoenas, because the subpoenas did not advance the committees’ legitimate lawmaking functions.[24] In particular, he claimed that the subpoenas at best sought information that only might lead to legislation, and that this was too speculative to fall within the committees’ lawmaking authority. Next, he asserted that the subpoenas sought information in areas where Congress simply could not legislate, for example, extending conflict-of-interest restrictions to, and imposing disclosure requirements upon, the president. Third, he said that the bank subpoenas impermissibly sought his personal financial information only as a “case study” for financial sector reform, and that this simply did not fit within Congress’s legitimate lawmaking power. Fourth, he argued that the subpoenas represented Congress’s attempt at law enforcement, not law-making, and that they therefore impermissibly encroached on the president’s plenary law-enforcement power under Article II. Fifth, President Trump claimed that the subpoenas were based only on the committees’ political interests, not their legitimate lawmaking interests. Finally, President Trump contended that the committees lacked express authority under House rules to issue the subpoenas.

President Trump claimed that the congressional subpoenas should be subject to an even higher standard under the separation of powers, because they sought the president’s personal financial information. In making the claim, the president and the government (as amicus in support of the president) tried to leverage the principles behind executive privilege, without formally invoking the privilege. Under its patched-together standard, the president and the government argued that the House must establish a heightened, “demonstrated, specific need” for the financial information, and that the financial information is “demonstrably critical” to its legislative function. The government said it this way:

At the threshold, the full [House] chamber should unequivocally authorize a subpoena against the President. Moreover, the legislative purpose should be set forth with specificity. Courts should not presume that the purpose is legitimate, but instead should scrutinize it with care. And as with information protected by executive privilege, information sought from the President should be demonstrably critical to the legitimate legislative purpose. A congressional committee cannot evade those heightened requirements merely by directing the subpoenas to third-party custodians, for such agents generally assume the rights and privileges of their principal . . . .[25]

President Trump’s argument that the Committees lacked a legitimate legislative purpose defied the Supreme Court’s plain rulings. The Court time and again has reaffirmed Congress’s broad powers to investigate in aid of its power to legislate. For example, in McGrain v. Daugherty, the Court explained that Congress’s “power of inquiry . . . is an essential and appropriate auxiliary to the legislative function,” because “[a] legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change.”[26] The Court held that it did not matter that a congressional resolution authorizing an investigation did not specifically identify particular legislation that Congress may enact, so long as “the subject to be investigated was . . . [p]lainly [a] subject . . . on which legislation could be had . . . .”[27] The Court has also held that it did not matter if the investigation examined issues that could also be the subject of a criminal prosecution. The Court explained that “the authority of that body, directly or through its committees, to require pertinent disclosures in aid of its own constitutional power is not abridged because the information sought to be elicited may also be of use in such suits.”[28] Moreover, congressional inquiries throughout our history involved the president, and the courts have been clear that the president enjoys no absolute immunity from these inquiries. Still, there are limits to these powers. In particular, Congress cannot use its investigatory powers to engage in “law enforcement,”[29] to “try” someone “for any crime of wrongdoing,”[30] or to expose private information only “for the sake of exposure.”[31] But the committees’ subpoenas did not come close to these restrictions.

President Trump’s and the government’s arguments that the committees’ subpoenas must meet a higher standard defied the Court’s rulings, too. That argument attempted to shoehorn the standard for executive privilege into a claim over congressional authority, a completely unrelated doctrine. The Court had never held anything like this. Again, President Trump’s claims represented a novel and breathtaking restriction on congressional authority to investigate.

C. The Court’s Ruling

The Court flatly rejected President Trump’s claims. The Court reaffirmed Congress’s broad powers of investigation, including powers to investigate the president. And it held that the executive-privilege standard had no application to a case over congressional authority to subpoena documents, even documents of the president. At the same time, however, the Court said that a congressional subpoena directed at the president’s private documents could raise separation-of-powers concerns, and that courts should evaluate such subpoenas with an eye toward those concerns.

Chief Justice John G. Roberts wrote for the Court, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch, and Brett M. Kavanaugh. The Court started by noting that Congress and the president have a long history, going all the way back to the early congresses, of negotiating these kinds of disputes between themselves, without involving the courts.[32] The Court traced the history to 1792, when a House committee sought Executive Branch documents relating to General St. Clair’s “utter rout” by Native Americans in the Northwest Territory, near the current border between Ohio and Indiana.[33] After consulting his cabinet, President George Washington concluded that the House had authority to “institute inquiries” and “call for papers,” but that the president could withhold “such papers as the public good would permit.”[34] President Washington then dispatched Secretary of State Thomas Jefferson to persuade members of the House to come around to the administration’s position. In response, the House voluntarily narrowed its request.

The Court noted that this kind of negotiation continued through modern times.[35] For example, the Court recounted that the Reagan administration engaged in a similar negotiated agreement with a House subcommittee over the subcommittee’s request for documents related to an administration decision under the Mineral Lands Leasing Act. It also recalled a negotiation between President Bill Clinton and a Senate committee over the committee’s subpoena for the White House attorney’s notes from a meeting with the president over the Whitewater matter. In each case, the Court noted, the president and Congress negotiated a resolution, without the intervention of the Supreme Court. In these most recent examples, Congress and the president negotiated a resolution even when the president had a legitimate claim of privilege over some of the material.

The Court noted that this longstanding practice left the Court without any meaningful precedent on this kind of dispute. But at the same time it noted that the longstanding practice itself “is a consideration of great weight” in balancing out the allocation of power, and that “it imposes on us a duty of care to ensure that we not needlessly disturb ‘the compromises and working arrangements’” that those branches have achieved.[36]

The Court then rejected the president’s claim that congressional subpoenas for the personal records of the president should be subject to the more demanding standard based on executive privilege. It held that executive privilege was designed to protect communications with the president over official matters, and that it therefore had no application to a congressional request for the private and unofficial documents of the president. The Court explained:

[Executive privilege] safeguards the public interest in candid, confidential deliberations within the Executive Branch; it is “fundamental to the operation of Government.” As a result, information subject to executive privilege deserves “the greatest protection consistent with the fair administration of justice.” We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations.[37]

The Court noted that the president and the government argued for a heightened standard for all congressional subpoenas aimed at the president, without distinguishing between private material and official material, privileged communications or non-privileged communications, and irrespective of the legislative purpose. Under this sweeping approach, the Court said that the heightened standard “would risk seriously impeding Congress in carrying out its responsibilities,” depart from “the longstanding way of doing business between the branches,” and impermissibly intrude upon Congress’s power to “have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government . . . .”[38]

But on the other hand, the Court recognized that congressional investigations into the president (and not just the Executive Branch more generally) raise “significant separation of powers issues.”[39] The Court recognized that the president, as the sole head of the Executive Branch, has a unique place in our constitutional system. As a result, the Court said that “congressional subpoenas for the president’s information,” unlike any other congressional subpoenas, “unavoidably pit the political branches against one another.”[40] Without some guardrails on subpoenas for the president’s information, “Congress could ‘exert an imperious controul’ over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared.”[41] Finally, the Court said that the potential separation-of-powers problems exist even though the subpoenas are directed at the president’s personal (not official) documents, and even though the president sued in his personal capacity. The Court noted that “the President is the only person who alone composes a branch of government.”[42] It wrote that “[g]iven [this] close connection between the Office of the President and its occupant, congressional demands for the President’s papers can implicate the relationship between the branches regardless whether those papers are personal or official.”[43] And in any event, the Court said that Congress could use a demand for a president’s private documents “to harass the President or render him ‘complaisan[t] to the humors of the Legislature.”[44]

To address the separation-of-powers concerns, and to determine the validity of any particular congressional subpoena to the president, the Court held that courts must balance “[s]everal special considerations.”[45] First, the Court said that courts should determine whether Congress really needs the president’s documents, or whether it could get the information it needs from other sources. Second, the Court wrote that a congressional subpoena to the president should be “no broader than reasonably necessary to support Congress’s legislative objective.”[46] Third, the Court held that courts “should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.”[47] And fourth, the Court said that courts should consider “the burdens imposed on the President by a subpoena.”[48] The Court held that other considerations may come into play, too, depending on the particulars of the case.

Justice Clarence Thomas dissented. He argued that “Congress has no power to issue a legislative subpoena for private, nonofficial documents—whether they belong to the President or not.”[49] Justice Thomas argued that Congress can only obtain this kind of material by using its impeachment power, not its ordinary legislative powers. But he declined to say “whether there are any limitations on the impeachment power that would prevent the House from subpoenaing the documents at issue.”[50]

Justice Samuel Alito also dissented.[51] He agreed with the Court that courts should be more attentive to the separation-of-powers concerns when they evaluate a congressional subpoena for the president’s personal records. (Justice Alito seemed to argue for even more attentiveness to these concerns.) But he went on to argue that the subpoenas in this case did not survive that scrutiny.

D. Significance

The ruling vacated the lower courts’ rulings and sent the cases back to the district courts for further proceedings. In particular, the district courts must now reconsider the committees’ subpoenas in light of the four (and possibly more) new special separation-of-powers considerations that the Court outlined in its ruling. But given the timing, the lower courts are highly unlikely to issue rulings before the current Congress ends. And even if they could, President Trump would surely appeal any adverse ruling and run the clock beyond the end of the current Congress. (To be sure, the Committees could issue new subpoenas and tailor them more closely to the separation-of-powers considerations in the Court’s ruling. But President Trump would challenge any new subpoenas, too, and similarly run the clock.) In short, President Trump effectively undermined congressional authority to subpoena his private financial records merely by lodging outlandish constitutional claims, forcing the committees to litigate them, and dragging the litigation out until the committees’ authority expires.

If the committees in the new Congress issue new subpoenas, we are likely to see this whole case replayed. Whether reelected or not, President Trump will undoubtedly challenge any new subpoenas under the Court’s new separation-of-powers considerations. If President Trump is reelected, the committees and President Trump will stand in exactly the same constitutional positions that they occupied in Mazars, and the courts will apply the new separation-of-powers consideration much as they would have applied them had there been time on remand. The justices in the majority in Mazars gave no hint as to how they might apply these considerations to the subpoenas.

If, on the other hand, President Trump is not reelected, the constitutional positions would change dramatically. Any separation-of-powers concerns would substantially diminish or disappear entirely, because Trump and the president would no longer be one in the same person. At the same time, the committees’ interests in the records would remain strong. The committees would then use the records of a former president to help inform any legislation on the same matters.

II. Trump v. Vance

Just as President Trump’s attacks on the separation of powers were on full display in Mazars, his attacks on federalism principles were on full display in Vance. Vance tested whether a state grand jury can issue a subpoena to a third party for the president’s personal financial records. Just as in Mazars, President Trump sued to halt the subpoena. He lodged a very different, but even more breathtaking claim, that the president enjoyed absolute, categorical immunity from all state criminal processes, including a state grand jury subpoena. President Trump claimed that federalism principles in the Constitution compelled this result.

Just as in Mazars, President Trump’s argument was extreme, but not a surprise. He campaigned on the claim that he could shoot a person on Fifth Avenue without losing supporters.[52] He said that as president the Constitution gave him the power to do whatever he wanted.[53] And then at the oral argument in the lower court in Vance, President Trump’s attorney doubled down on his shooting claim and argued that the president would be absolutely immune from a state criminal investigation if he shot someone in the middle of Fifth Avenue.[54]

The Court had never said anything close to this. To be sure, the Court had recognized executive privilege, and it had ruled that a president is absolutely immune from claims for civil damages arising out of the president’s official conduct. But at the same time, the Court held that a sitting president is not immune from a suit for civil damages arising out of the president’s unofficial conduct before the president came to office. President Trump’s argument for categorical immunity from all state criminal processes flew in the face of these rulings.

Moreover, President Trump’s strategy, like his strategy in Mazars, drew on the comparative institutional strengths of the presidency and the comparative institutional weaknesses of the state grand jury and prosecutor. President Trump knew that the state prosecutor, like Congress, lacked any meaningful authority to enforce a subpoena against the president without involving the courts in a long, drawn-out process. By preemptively suing the prosecutor, President Trump set the judicial process in motion on his own terms.

Still, the Court flatly rejected the president’s claims. It held that the president is not categorically immune from state criminal processes. But at the same time, it noted that the president, like anyone else, can challenge the breadth and scope of a state grand jury subpoena, and it remanded the case to allow the president to do just that. President Trump is now pressing those claims in the next round of litigation in an effort to draw this dispute out even longer, simultaneously abusing federalism principles and the federal courts in the process.

A. Background

The case started in the Summer of 2018, when the New York County District Attorney’s Office opened an investigation into possible criminal misconduct in financial transactions related to President Trump and his corporations. The transactions included the now-familiar “hush money” that President Trump’s attorney, Michael Cohen, paid to two women with whom President Trump had extra-marital affairs. (Cohen admitted that he violated campaign finance laws in coordination with, and at the direction of a person later identified as President Trump. Cohen pleaded guilty to the charges and was sentenced to prison.) We have since learned that the investigation included other matters, too.

As part of the investigation, the district attorney’s office served the Trump Organization with a grand jury subpoena for records and communications concerning certain financial transactions and tax returns. The Trump Organization produced some of the documents, but not all, and in particular, not President Trump’s tax returns. The district attorney’s office then served a grand jury subpoena on Mazars USA, LLP, President Trump’s accounting firm. The subpoena sought financial and tax records from January 1, 2011, to August 29, 2019 (the date of the subpoena). Like the congressional subpoenas in Mazars, the grand jury subpoena sought only the purely private financial records of President Trump; it did not seek any official government communications or any material related to any official presidential conduct. (Indeed, the grand jury subpoena was patterned on one of the committee subpoenas in Mazars.)

The Trump Organization then sued the district attorney, Cyrus Vance, and Mazars in federal court, seeking a preliminary injunction to halt Mazars from complying with the subpoena. The district court ruled that the case belonged in state court, not federal court, and that in any event President Trump was not categorically immune from the subpoena.[55]

The Second Circuit vacated the district court’s ruling that the case belonged in state court but affirmed its alternative ruling that President Trump was not categorically immune from the subpoena.[56] The court noted that the requested documents, all private financial records, were not covered by executive privilege and did not implicate President Trump’s official duties. The court recognized that the president, as sole head of the Executive Branch, “occupies a unique position in the constitutional scheme,”[57] and that a state criminal process could interfere with the president’s Article II responsibilities. But it said that

we are not faced, in this case, with the President’s arrest or imprisonment, or with an order compelling him to attend court at a particular time or place, or, indeed, with an order that compels the President himself to do anything. The subpoena at issue is directed not to the President, but to his accountants; compliance does not require the President to do anything at all.[58]

The court concluded “that presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President,”[59] and declined to enjoin the subpoena.

B. President Trump’s Arguments

President Trump appealed to the Supreme Court. His argument was breathtaking: He claimed that under federalism principles, he, as president, was absolutely immune from all state criminal processes, including the Mazars subpoena.[60] He argued that any state criminal process would distract the president from performing the president’s constitutional duties; that state criminal processes would stigmatize the president and interfere with the president’s ability to perform Article II duties; and that state prosecutors could use state criminal processes to harass the president for political reasons. President Trump said that without such immunity, states could impermissibly interfere with the president’s constitutional responsibilities in violation of federalism principles.

The government weighed in to support President Trump.[61] Unlike the president, however, the government did not argue that the president is categorically immune from state criminal processes. Instead, the government argued only that the Court should apply a higher standard to a state-court subpoena issued to the president than it would apply to a state-court subpoena issued to any other person. The government argued that in order to protect the president from impermissible interference with the president’s constitutional duties, the Court should require the state prosecutor to demonstrate a “heightened standard of need” for the material.

The president’s argument had no support in the law. While the Court had previously recognized executive privilege and the president’s categorical immunity from lawsuits for civil damages arising out of the president’s official conduct, it had also ruled that a sitting president was not immune from a lawsuit for civil damages arising out of the president’s unofficial, pre-presidential conduct. Moreover, presidents have long been subject to federal criminal processes, and President Trump did not raise any especially constitutional reasons the president should not also be subject to state criminal processes. To be sure, the Department of Justice has long held that a sitting president is absolutely immune from federal criminal prosecution. That’s not uncontroversial. But even if it were settled, there’s an awfully long stretch from absolute immunity from federal criminal prosecution to absolute immunity from all state criminal processes. Not even the government went this far.

C. The Court’s Ruling

The Court rejected it, too.[62] Chief Justice Roberts again wrote for the Court, this time joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Court ruled that President Trump was not absolutely immune from all state criminal processes, but that the president could challenge a state grand jury subpoena under state and federal law, like anybody else.

The Court started by reciting the long history, going back to Aaron Burr’s 1807 treason trial, of presidents complying with criminal subpoenas, subject to the president’s availability and in light of the president’s constitutional responsibilities. As a “bookend” to the Burr case, the Court cited the special prosecutor’s subpoena directed at President Richard Nixon in United States v. Nixon.[63] The Court noted that it later described Nixon as “unequivocally and emphatically endor[ing] Marshall’s holding that Presidents are subject to subpoena.”[64]

The Court held that this same rule applied with equal force to a state grand jury subpoena, notwithstanding President Trump’s federalism arguments to the contrary. First, the Court rejected President Trump’s claim that the subpoena would distract the president from the president’s Article II responsibilities. The Court wrote that

two centuries of experience confirm that a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties. If anything, we expect that in the mine run of cases, where a President is subpoenaed during a proceeding targeting someone else, as Jefferson was, the burden on a President will ordinarily be lighter than the burden of defending against a civil suit.[65]

Next, the Court rejected President Trump’s claim that the subpoena would stigmatize the president. The Court noted that it previously rejected this same claim as a basis for immunity in both Nixon and Clinton. In any event, it held that the president is not stigmatized by performing “the citizen’s normal duty of . . . furnishing information relevant” to a criminal investigation.[66] The Court wrote that other legal protections were already in place to ensure against President Trump’s worry: “longstanding rules of grand jury secrecy aim to prevent the very stigma the President anticipates.”[67]

Finally, the Court rejected President Trump’s argument that without immunity, state and local prosecutors could use criminal processes to harass the president. The Court again noted that it rejected a nearly identical argument in Clinton, and, as with stigma, it said that ordinary procedural protections ensure against this. In sum, “Given these safeguards and the Court’s precedents, we cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause.”[68] (The Court similarly rejected the government’s argument for a higher standard when a state grand jury issues a subpoena for the president’s private documents.)

The Court noted that the president could still raise subpoena-specific challenges to a state grand jury subpoena; it said that the president could challenge the subpoena on any basis permitted by state law and under separation-of-powers principles. This meant that the president could challenge the subpoena for the mundane reason that is it overbroad, for example. Or the president could challenge the subpoena for the constitutional reason that would impede the president in the performance of the president’s Article II duties. The court wrote that if the president can demonstrate that a subpoena would interfere with Article II responsibilities, “[a]t that point, a court should use its inherent authority to quash or modify the subpoena, if necessary to ensure that such ‘interference with the President’s duties would not occur.’”[69]

Justice Kavanaugh concurred, joined by Justice Gorsuch.[70] Justice Kavanaugh argued for a somewhat higher standard for the subpoena, given the president’s unique place in our constitutional system. In particular, drawing on Nixon, Justice Kavanaugh argued that the prosecutor should have to show a “demonstrated, specific need” for the information. According to Justice Kavanaugh, this “tried-and-true test . . . accommodates both the interests of the criminal process and the Article II interests of the Presidency.”[71]

Justice Thomas dissented.[72] He agreed with the Court that the president is not absolutely immune from a state grand jury subpoena. He also agreed with the Court that President Trump could challenge this subpoena on remand. But Justice Thomas would have applied “the standard articulated by Chief Justice Marshall in Burr: If the President is unable to comply because of his official duties, then he is entitled to injunctive and declaratory relief.”[73]

Justice Alito dissented, too.[74] Justice Alito argued that, given the unique place of the president in our constitutional system and federalism considerations, the president is absolutely immune from state criminal prosecution while in office. He wrote that

a State’s sovereign power to enforce its criminal laws must accommodate the indispensable role that the Constitution assigns to the Presidency. . . . Both the structure of the Government established by the Constitution and the Constitution’s provisions on the impeachment and removal of a President make it clear that the prosecution of a sitting President is out of the question.[75]

Warning of a slippery slope from a subpoena to a state criminal charge, Justice Alito argued for a higher standard for a state grand jury subpoena. He wrote that “a prosecutor should be required (1) to provide at least a general description of the possible offenses that are under investigation, (2) to outline how the subpoenaed records relate to those offenses, and (3) to explain why it is important that the records be produced and why it is necessary for production to occur while the President is still in office.”[76]

D. Significance

The Court remanded the case back to the lower court and invited President Trump to challenge the subpoena again, this time on subpoena-specific bases under state law and the separation of powers. The ruling not only gave the president another shot at challenging the subpoena; it also allowed the president to continue to drag out the litigation and abuse the courts in an effort to run out the clock on the subpoena past the 2020 election and beyond. In short, the ruling meant that President Trump could start his legal challenge all over again.

President Trump readily accepted the invitation. He filed a new complaint alleging that the subpoena was overbroad for a variety of reasons, and that it was issued in bad faith. The lower courts categorically rejected these claims.[77] On October 13, 2020, President Trump filed an application for a stay pending a petition for writ of certiorari with the Court. As this piece goes to print, the Court has not yet ruled.

So, on the one hand, Vance stands as a resounding rejection of the president’s most outlandish claim, that the president is categorically and absolutely immune from all state criminal processes. It also stands for the age-old principle that no person is above the law. The ruling reaffirmed these bedrock principles in our structural Constitution.

But on the other hand, the ruling allows the president to continue his specious challenge to the subpoena in the federal courts. It invites him to start his challenge anew, which he has done, and to abuse the state grand jury and the federal courts by dragging his litigation out and attempting to run the clock on the subpoena.

If the president is reelected, he will continue to fight and challenge the subpoena to the Court. If he loses at the Court, he will undoubtedly employ some new, novel, and as-yet-unimagined gambit under the guise of executive authority or federalism to continue to delay compliance and, ultimately, perhaps prosecution. If, on the other hand, he is not reelected, he will simply have a harder time challenging the subpoena and other state criminal processes, because he will lose his constitutional claims entirely.

Either way, he has already damaged our structural Constitution. Even with a Court ruling against him, he continues to play the courts in order to delay compliance with the subpoena, at the expense of the state grand jury and of our federal judiciary.

***

On their face, Vance and Mazars are resounding reaffirmations of fundamental separation-of-powers and federalism principles in our Constitution. By rejecting President Trump’s most outlandish constitutional claims, these cases show that on one level our structural Constitution works: When one constitutional actor pushes too hard, another can push it back to its place.

But on a different level, the cases represent just one stage in President Trump’s larger strategy to attack and dismantle our structural Constitution. Both rulings invite President Trump to continue his fights against the subpoenas through the courts. He has happily accepted this invitation, and he is now working to drag these cases out past the 2020 election, past the current Congress, and beyond. In so doing, he continues to abuse and undermine the coordinate branches and the states, and to wreak havoc on our structural Constitution.

 

 Professor of Law, University of Illinois Chicago Law School; Board of Advisors, Chicago Lawyers Chapter of the American Constitution Society. Many thanks to Christopher Wright Durocher and Bridget Lawson for their outstanding editorial work on this piece. All errors are, of course, my own.

[1] Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020).

[2] Trump v. Vance, 140 S. Ct. 2412 (2020).

[3] Mazars, 140 S. Ct. at 2027.

[4] Id.

[5] Id.

[6] Id.

[7] Id. (quoting H.R. Rep. No. 116–40 at 84 (2019)).

[8] Id. (quoting Press Release, House Permanent Select Committee on Intelligence, Chairman Schiff Statement on House Intelligence Committee Investigation (Feb. 6, 2019)).

[9] U.S. Const. art. I, § 9, cl. 8; art. II, § 1, cl. 7; art. I, § 6, cl. 2.

[10] Id. at 2028.

[11] Trump v. Mazars USA, LLP, 940 F.3d 710 (D.C. Cir. 2019).

[12] Id. at 726.

[13] Id. at 734.

[14] Id. at 734–35.

[15] Id. at 726.

[16] Id. at 748 (Rao, J., dissenting).

[17] Trump v. Mazars USA, LLP, 941 F.3d 1180, 1182 (D.C. Cir. 2019) (Rao, J., dissenting). For a critique of this argument, see Steven D. Schwinn, The Misguided On-Off Theory of Congressional Authority, 95 Chi.-Kent L. Rev. (forthcoming 2020).

[18] Id. at 1182.

[19] Trump v. Deutsche Bank AG, 943 F.3d 627 (2d Cir. 2019).

[20] Id. at 658–59.

[21] Id. at 659–60.

[22] Id. at 678 (Livingston, J., dissenting) (quoting U.S. v. Rumely, 345 U.S. 41, 46 (1953)).

[23] Id. at 679 (“As set forth herein, I would remand, directing the district court promptly to implement a procedure by which the Plaintiffs may lodge their objections to disclosure with regard to specific portions of the assembled material and so that the Committees can clearly articulate, also with regard to specific categories of information, the legislative purpose that supports disclosure and the pertinence of such information to that purpose.”).

[24] See generally Brief for Petitioners, Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020).

[25] Brief for the United States as Amicus Curiae Supporting Petitioners at 8, Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020).

[26] McGrain v. Daugherty, 273 U.S. 135, 174–75 (1927).

[27] Id. at 176 (emphasis added).

[28] Sinclair v. United States, 279 U.S. 263, 295 (1929).

[29] Quinn v. United States, 349 U.S. 155, 161 (1955).

[30] McGrain, 273 U.S. at 179-80.

[31] Watkins v. United States, 354 U.S. 178, 200 (1957).

[32] Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2029-31 (2020).

[33] Id. at 2029.

[34] Id. at 2029–30.

[35] Id. at 2030–31.

[36] Id. at 2031.

[37] Id. at 2032-33.

[38] Id. at 2033 (quoting Rumely, 345 U.S. at 43).

[39] Id. at 2033.

[40] Id. at 2034.

[41] Id. (quoting The Federalist No. 71 (Alexander Hamilton)).

[42] Id. at 2034.

[43] Id.

[44] Id. (quoting The Federalist No. 71 (Alexander Hamilton)).

[45] Id. at 2035.

[46] Id. at 2036.

[47] Id.

[48] Id.

[49] Id. at 2037 (Thomas, J., dissenting).

[50] Id. at 2045 n. 7.

[51] Id. at 2048 (Alito, J., dissenting).

[52] Jeremy Diamond, Trump: I Could 'Shoot Somebody and I Wouldn't Lose Voters', CNN (Jan. 24, 2016) (then-candidate Trump said during the 2016 Republican presidential primary campaign “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn't lose any voters, OK?”).

[53] Michael Brice-Saddler, While Bemoaning Mueller Probe, Trump Falsely Says the Constitution Gives Him ‘the Right to Do Whatever I Want’, Wash. Post (July 23, 2019) (President Trump stated “I have an Article II, where I have to the right to do whatever I want as president.”).

[54] Lauren Aratani, Trump Couldn't Be Prosecuted If He Shot Someone on Fifth Avenue, Lawyer Claims, Guardian (Oct. 23, 2019).

[55] Trump v. Vance, 395 F. Supp. 3d 283 (S.D.N.Y. 2019).

[56] Trump v. Vance, 941 F.3d 631 (2d Cir. 2019).

[57] Id. at 642 (quoting Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982)).

[58] Id.

[59] Id. at 640.

[60] See generally Brief for Petitioner, Trump v. Vance, 140 S. Ct. 2412 (2020).

[61] See generally Brief of the United States Supporting Petitioner, Trump v. Vance, 140 S. Ct. 2412 (2020).

[62] Trump v. Vance, 140 S. Ct. 2412 (2020).

[63] United States v. Nixon, 418 U.S. 683 (1974).

[64] Vance, 140 S. Ct. at 2424 (quoting Clinton v. Jones, 520 U.S. 681 (1997)).

[65] Id. at 2426.

[66] Id. at 2427 (quoting Branzburg v. Hayes, 408 U.S. 665 (1972)).

[67] Id.

[68] Id. at 2429.

[69] Id. at 2431 (quoting Jones, 520 U.S. at 710).

[70] Id. (Kavanaugh, J., concurring).

[71] Id. at 2432.

[72] Id. at 2433 (Thomas, J., dissenting).

[73] Id. at 2436.

[74] Id. at 2439 (Alito, J., dissenting).

[75] Id. at 2444.

[76] Id. at 2449.

[77] Trump v. Vance, No. 19-cv-8694, 2020 WL 4861980 (S.D.N.Y. Aug. 20, 2020); Trump v. Vance, No. 20-2766, 2020 WL 5924199 (2d Cir. Oct. 7, 2020).