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The Supreme Court Brings the Presidency Back From a Lawless Brink

Today's decisions may not provide the deus ex machina that brings down Trump, but they slam the brakes on runaway executive power.

Jim Watson/Getty Images

The Supreme Court spent 117 pages on Thursday to underscore what can be summed up in a single sentence: President Donald Trump is not above the law. In two major cases, the justices rejected Trump’s claims of absolute immunity from subpoenas issued by congressional investigators on Capitol Hill and local prosecutors in Manhattan to obtain his personal financial records from third parties. Taken together, the decisions are a landmark ruling on the bounds of presidential power.

“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,” Chief Justice John Roberts wrote for the court in Trump v. Vance, citing his distant predecessor John Marshall. Vance and Trump v. Mazars came down as 7-2 decisions, with Roberts authoring each ruling. Justices Clarence Thomas and Samuel Alito dissented in both cases.

The court’s decisions do not guarantee that the public will be able to see the president’s records for themselves any time soon, or even at all. Even as they rejected Trump’s sweeping assertions of immunity from outside scrutiny, the justices recognized limits on Congress’s ability to obtain personal records from presidents on separation-of-powers grounds. The justices also sent both cases back to the lower courts for further consideration, making it unlikely that any material will be handed over before the November election.

In the long term, however, the Supreme Court decisively rejected a dangerous theory of the presidency’s role in the American constitutional order. The justices reaffirmed Congress’s broad investigatory powers outside of the impeachment context and held that presidents are not inherently beyond the reach of state criminal proceedings. In that sense, the rulings are a long-overdue victory against the limitless vision of executive power put forth by Trump and his conservative allies.

Thursday’s rulings sprang from two long-running disputes involving Trump’s financial records. In Mazars, the president challenged subpoenas from multiple House committees that sought his financial records from Mazars, his accounting firm, and major banks like Deutsche Bank and Capital One. Trump and his lawyers argued that the subpoenas were part of a partisan effort to harass and undermine him, and thus fell outside the legitimate legislative purposes with which Congress can obtain information. They also argued that Congress had essentially seized a law-enforcement power that properly belongs to the executive branch.

Naturally, Trump didn’t want law-enforcement agencies to probe his business dealings either. In Vance, the president asked the federal courts to block a subpoena from a New York grand jury on behalf of Cyrus Vance Jr., the district attorney for Manhattan. Vance sought a wide range of Trump’s financial records, including his tax returns, as part of a criminal investigation. While Vance’s office told the courts it wouldn’t try to indict or prosecute a sitting president, it sought to secure evidence and testimony now that might not be available later. Courts typically defer to prosecutors on these judgments, but Trump insisted that such a precedent would invite local prosecutors around the country to harass presidents with whom they disagreed.

Trump’s efforts raised profound questions about the nature of the presidency itself. In each of the cases, Trump’s lawyers and the Justice Department tried to quash the subpoenas by arguing that he was a unique fixture in the American legal firmament. While Americans generally can’t shield themselves or their records from grand juries and Congress, the president argued that he could do so because of his unusual constitutional status. “He is the sole person in whom all executive power is vested,” Solicitor General Noel Francisco told the justices at oral arguments in May. “And so that necessarily implies that there are limits on what others can do to unduly burden him in his ability to do his job.”

In those oral arguments, some of the justices seemed uneasy with this sweeping proposition. “Why isn’t it sufficient just to apply ordinary standards?” Justice Stephen Breyer asked Jay Sekulow, who represented Trump in a personal capacity. “I gather ordinarily any person who gets a subpoena can come in and say it’s unduly burdensome. And what counts as unduly burdensome for a doctor who is in the middle of an operation might be very different from a person who’s a salesman, and similarly for the president. All the factors you raise could come in under the title unduly burdensome.”

Sekulow argued that the president’s job was inherently more stressful and complex than the jobs of ordinary Americans, and that he deserved special latitude from the courts in recognition of that. “Let’s assume the president were to hire me,” he replied, “and that I’m going to call the president of the United States today and say, ‘I know you’re handling a pandemic right now for the United States, but I need to spend a couple, two to three hours with you going over a subpoena of documents that are wanted by, here, the New York County district attorney.’” The implication was that if the Supreme Court requires a sitting president to obey these subpoenas, people could die.

As I noted in May, however, there is little reason to think that complying with the subpoenas would actually make it harder for Trump to carry out his presidential duties. The president, after all, does not personally enforce federal law on a day-to-day basis. More than two million civil servants actually carry out those duties on his behalf, led by a cadre of political appointees chosen by the president to supervise and manage them according to his policy agenda. If Vance had attempted to charge Trump with a crime and remand him to Rikers Island while he awaited trial, the president would have a much stronger case that the executive branch was being undermined. Letting the president’s bankers and accountants hand over his financial records would undermine nothing—save, perhaps, for his political fortunes this November and his risk of prosecution after leaving office.

Roberts, writing for the court, also rejected the notion that subpoenas posed any inherent threat to the presidency. Complying with a criminal subpoena, especially one issued to a third party, would likely pose less of a burden than dealing with civil lawsuits, which the court allowed against sitting presidents in a 1997 case involving Bill Clinton. On claims that the stigma of a subpoena would “undermine his leadership at home and abroad,” Roberts noted that there is “nothing inherently stigmatizing” about fulfilling a “citizen’s normal duty” to aid a criminal investigation. And he noted that if a local prosecutor’s efforts ever crossed the line into harassment, federal courts could still intervene on the president’s behalf.

In dissent, Alito argued that the court should consider whether a local district attorney could prosecute a president at all before deciding on the subpoena. Though he did not say it outright, he strongly suggested that he thought it couldn’t be done. “Could [a president] effectively carry out all his essential Presidential responsibilities after the trial day ended and at the same time adequately confer with his trial attorneys regarding his defense?” he asked in a long series of hypothetical questions. “Or should he be expected to give up the right to attend his own trial and be tried in absentia? And if he were convicted, could he be imprisoned? Would aides be installed in a nearby cell? This entire imagined scene is farcical.”

Even then, however, Alito rejected the Trumpian notion that presidents could never be subpoenaed by a local grand jury. (So did Thomas in his own dissent.) “There may be situations in which there is an urgent and critical need for the subpoenaed information,” Alito acknowledged. “The situation in the [Aaron] Burr trial, where the documents at issue were sought by a criminal defendant to defend against a charge of treason, is a good example. But in a case like the one at hand, a subpoena should not be allowed unless a heightened standard is met.” Roberts and the majority rejected the idea of a heightened standard, concluding that existing checks on prosecutorial overreach would be enough.

Cy Vance avoided the thornier implications of his case by disavowing the power to indict and prosecute a sitting president during oral arguments in May. In Mazars, the House’s failure to make similar strategic concessions appears to have hurt its case. In its briefs and at oral arguments, the committees declined to recognize curbs on their power to obtain information, to the justices’ apparent frustration. “Far from accounting for separation of powers concerns, the House’s approach aggravates them by leaving essentially no limits on the congressional power to subpoena the president’s personal records,” Roberts wrote.

The court instead laid out a four-factor balancing test between the two extremes. Roberts noted that courts should “carefully assess whether the asserted legislative purpose warrants the significant step of involving the president and his papers.” Subpoenaed should be “no broader than reasonably necessary to support Congress’s legislative objective” to avoid unnecessary conflict between branches. Courts, Roberts explained, “should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.” And they should “be careful to assess the burdens imposed” on a president to ensure lawmakers aren’t simply seeking an “institutional advantage.” His list was not exclusive: “Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list,” Roberts added.

Those factors placed new hurdles on lawmakers’ ability to obtain the president’s personal records. At the same time, the court reaffirmed Congress’s general power to investigate and issue subpoenas to fulfill its legislative duties. Thomas, writing again in dissent, said he would have blocked lawmakers’ inquiries altogether unless part of an impeachment inquiry. “I would hold that Congress has no power to issue a legislative subpoena for private, nonofficial documents—whether they belong to the President or not,” he wrote. Trump, for his part, unsuccessfully argued that Congress should have to meet the same strict threshold that the Watergate special prosecutor had to meet to obtain Richard Nixon’s White House tapes.

It’s not yet clear how these thresholds will shake out in practice. In Mazars, Trump may yet be able to convince the lower courts that Congress’s rationale for seeking his financial records is too broad, too partisan, or too purposeless. Vance will likely have an easier road to obtaining the records he seeks, though Trump’s slow-walking strategy in the courts will likely delay it as long as possible. Americans will almost certainly head to the polls in the 2020 election without having seen Trump’s tax returns, just as they did in the 2016 election. At this point, however, voters hardly need them to make a full assessment of the man.

The most important part of Thursday’s ruling may ultimately be about the nature of the presidency itself. Trump and his allies in the conservative legal movement have embraced extreme theories of presidential power, especially when it comes to Congress’s ability to conduct oversight of the executive branch. Trump himself once claimed that Article II gives him “the right to do whatever I want as president.” Under Attorney General Bill Barr, who himself holds an unorthodox view of the presidency, the Justice Department has come awfully close to making that argument in court.

The Supreme Court disagreed. “In our judicial system, ‘the public has a right to every man’s evidence,’” Roberts wrote in Vance, quoting an old English legal maxim. “Since the earliest days of the Republic, ‘every man’ has included the President of the United States.” Thursday’s rulings fell short of bringing full accountability to a presidency in desperate need of it. But in the Trump era, recognizing that presidents can be held accountable at all is a victory in and of itself.