The Supreme Court looks like it was trying to split the baby Thursday in a pair of 7-2 decisions on subpoenas for President Trump’s personal records. But forget about Mr. Trump. The real import of the rulings is that the Supreme Court has weakened the Presidency by opening the gates to harassment by Congress and especially local prosecutors.
As a practical matter, the Justices remanded both cases to lower courts to reconsider based on new general guidelines laid out by the majority opinions. This means Mr. Trump probably won’t have to turn over his tax returns before the election. And if he loses in November, the Supreme Court will never see the cases again.
You can almost hear the Chief Justice wishing for this reprieve in his majority opinion in Trump v. Mazars, the Congressional case. “Historically, disputes over congressional demands for presidential documents have not ended up in court. Instead, they have been hashed out in the ‘hurly-burly, the give-and-take of the political process between the legislative and the executive,’” the Chief writes.
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But the two cases will still be precedents after Mr. Trump departs, and they bode ill for future Presidents of either party. Start with Mazars, in which House Democrats subpoenaed Mr. Trump’s tax returns and other financial records from banks and accounting firms. They claim the documents are needed to inform legislation about Russian meddling in elections and to close “loopholes that allow corruption, terrorism, and money laundering to infiltrate our country’s financial system.”
Not even the Court’s four liberals bought that line as they joined the majority. As the Chief writes, “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.”
Yet even as he bows to the separation of powers, the Chief refuses to reject the subpoenas. Instead, he establishes a new four-prong test for lower courts to review subpoenas. “Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs” and a subpoena may be “no broader than reasonably necessary to support Congress’s legislative objective,” the Chief writes.
Courts must also be “attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose” and “should assess the burdens imposed on the President by a subpoena, particularly because they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage.”
These separation-of-powers concerns are better than nothing, but it’s far from certain they’ll restrain a willful Congress or partisan judges. The result means that Congress now has an invitation to seek a President’s personal records as long as it builds a remotely plausible legislative purpose and without the political accountability of an impeachment proceeding.
Justice Clarence Thomas nails the impeachment point in his dissent, and Justice Samuel Alito highlights the inadequacy of the Court’s remand to lower courts given that the House subpoena at issue so clearly fails the Chief Justice’s four-part test. You have to wonder if that was the price the Chief had to pay for getting the four liberal Justices on board.
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The Trump v. Vance ruling looks even more dangerous for Presidents. All nine Justices agreed, rightly in our view, that the President is not absolutely immune from criminal investigations or subpoenas. As the Chief writes for the majority, even John Marshall required Thomas Jefferson to comply with a subpoena in Aaron Burr’s treason trial. But his opinion grants a President few protections from political harassment.
“It is not enough to recite sayings like ‘no man is above the law’ and ‘the public has a right to every man’s evidence,’” Justice Alito writes in dissent that has a realistic handle on our partisan times. “These sayings are true—and important—but they beg the question. The law applies equally to all persons, including a person who happens for a period of time to occupy the Presidency. But there is no question that the nature of the office demands in some instances that the application of laws be adjusted at least until the person’s term in office ends.”
As Justice Alito notes, the Court has recognized “a President is ‘an easily identifiable target”’ and “there are more than 2,300 local prosecutors and district attorneys in the country. Many local prosecutors are elected, and many prosecutors have ambitions for higher elected office.”
The Chief says judges will police local prosecutors, but this is optimism approaching political naiveté. In this case, none of the lower courts would even concede that a sitting President can’t be criminally prosecuted by a local district attorney. While the Chief says a President can challenge a subpoena by “‘“an affirmative showing of impropriety,” including “bad faith”’ or retaliation for official acts,” Justice Alito correctly notes that “such objections are almost universally overruled.”
Mr. Trump won’t occupy the Oval Office forever, maybe not past January. Rest assured that Republican partisans will interpret the Court’s rulings on Thursday as a license to harass a Democratic President as long as they put forward a plausible legal cover. Joe and Hunter Biden had better prepare for the subpoenas of their personal and business records.
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