The Court holds that there are special rules for the president.
The Supreme Court handed down two decisions on Thursday concerning whether the president of the United States enjoys special immunity from criminal investigation or from congressional oversight.
The first of those cases, Trump v. Vance, largely maintains the status quo. As Chief Justice John Roberts states in the first line of that opinion, “in our judicial system, ‘the public has a right to every man’s evidence,’” and “since the earliest days of the Republic, ‘every man’ has included the President of the United States.” Trump does not enjoy absolute immunity from a state prosecutor’s criminal investigation.
The latter case, however, is a significant shift in the law governing congressional investigations, and an equally significant victory from Trump. The upshot of Trump v. Mazars is that House investigators almost certainly will not see potentially damning records concerning Trump’s finances until after the November election. Mazars was also written by Roberts.
Though Mazars does not preclude the House from seeing those records eventually, by the time those records become available Trump will almost certainly either be an ex-president, or he will be firmly entrenched in his second term.
On the surface, it is easy to see Mazars as a defeat for Trump. The decision was 7-2, with all four of the Court’s liberals joining the majority. Justices Clarence Thomas and Samuel Alito both wrote dissents, where they complain that the majority didn’t do enough to protect Trump from investigation.
But make no mistake, Mazars is a victory for Trump because it holds that the president enjoys special immunity from congressional investigation enjoyed by no other citizen — and because it likely shields Trump’s records from the public eye until after the election.
What these investigations are about
Both cases involve subpoenas targeting financial firms that possess some of Trump’s financial records, an apparent effort to obtain records that the president would not turn over voluntarily.
Mazars concerns three different probes seeking these records. The House Oversight Committee subpoenaed the president’s accounting firm, Mazars USA, seeking many of Trump’s financial documents.
As a lower court that upheld this subpoena explained, this investigation began after “the Office of Government Ethics announced that it had identified an error in one of the several reports that President Trump had filed since he became a presidential candidate in 2015.” Later on, Trump’s former lawyer, Michael Cohen, testified that Trump “‘inflated his total assets when it served his purposes’ in some situations and had ‘deflated his assets’ in others,” thus exacerbating fears that Trump did not comply with federal ethics laws requiring him to disclose his finances.
Among other things, the House says that this investigation is needed to determine whether stronger ethics laws are necessary to prevent presidents from misrepresenting their finances in the future.
Another probe is being run by the House Financial Services Committee. Among other things, the Financial Services Committee says it is investigating “the influx of illicit money, including from Russian oligarchs,” which “has flowed largely unimpeded into the United States through … anonymous shell companies and into U.S. investments, including luxury high-end real estate.” This investigation touches upon Trump and his businesses because of concerns that Trump is tied to wealthy former Soviet businessmen with links to money laundering.
A third probe by the House Intelligence Committee also seeks many of the same documents. Its investigation touches more directly upon Trump himself, as it seeks to answer questions like whether there are “any links and/or coordination between the Russian government, or related foreign actors, and individuals associated with Donald Trump’s campaign, transition, administration, or business interests, in furtherance of the Russian government’s interests.” This investigation could inform legislation seeking to reduce foreign interference in US elections.
Finally, the Vance case involves Manhattan District Attorney Cyrus Vance’s criminal investigation into the Trump Organization and related businesses. Vance’s brief to the Supreme Court points to “multiple public reports” describing “transactions and tax strategies … spanning more than a decade,” which suggested that Trump’s businesses were engaged in criminal activity within Vance’s jurisdiction. Vance points specifically to “‘hush money’ payments made on behalf of [Trump] to two women with whom [Trump] allegedly had extra-marital affairs.”
Vance’s office subpoenaed Mazars, seeking many of the same documents sought by the House.
Under existing law, Trump should have lost both cases
The Court’s Vance opinion places heavy emphasis on the fact that existing law does not immunize Trump from criminal investigation. Trump, for example, argued that subjecting him to such an investigation is impermissible because it could distract him from his official duties. “But that argument runs up against the 200 years of precedent establishing that Presidents, and their official communications, are subject to judicial process even when the President is under investigation,” according to Roberts.
Similarly, Roberts rejects Trump’s claim that “subjecting Presidents to state criminal subpoenas will make them ‘easily identifiable target[s]’ for harassment.” As Vance notes, “we rejected a nearly identical argument in [Clinton v. Jones (1997)], where then-President Clinton argued that permitting civil liability for unofficial acts would ‘generate a large volume of politically motivated harassing and frivolous litigation.’”
Though Vance’s office may continue its probe into Trump, the Vance decision does not mean that this probe will not face additional obstacles. As Roberts notes, Trump still has the “right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth.” The subpoena could also be invalidated if a court concluded that it was “an attempt to influence the performance of [Trump’s] official duties,” or if Trump could show that the subpoenas would “significantly interfere with his efforts to carry out” those duties.
Vance simply means that Trump does not enjoy total immunity from state criminal investigation.
But if Vance was a blow to Trump’s attempts to avoid Vance’s investigation, Mazars was a blow to the House’s three probes into Trump.
Prior to Mazars, the law governing the House’s power to conduct investigations was, if anything, even less favorable to Trump’s arguments than the law governing the Vance case. As the Supreme Court held in Eastland v. United States Servicemen’s Fund (1975), “the power to investigate and to do so through compulsory process … is inherent in the power to make laws” because without such a power, “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.”
Eastland held that Congress is entitled to gather information — and to use compulsory subpoenas to gather such information — whenever that subpoena is “intended to gather information about a subject on which legislation may be had.” So long as the congressional subpoenas sought information on a topic that could plausibly be subject to an act of Congress, those subpoenas were lawful.
The new rule announced in Mazars, however, can be boiled down into four words: “the president is special.”
According to Roberts, “congressional subpoenas for the President’s information unavoidably pit the political branches against one another.” He adds that “without limits on its subpoena powers, Congress could ‘exert an imperious controul’ [sic] over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared.”
So Mazars invents new limits on congressional subpoenas targeting the president, and sends the case back down to a lower court to apply this new rule.
The new rules impose strict limits on congressional investigations targeting the president
Roberts’s Mazars decision lists several new limits on any congressional investigation into the president.
Among other things, courts must “carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.” They must “insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.” They must be particularly reluctant to allow investigations when “Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency.” And they “should be careful to assess the burdens imposed on the President by a subpoena.”
It’s not immediately clear why the Court voted so overwhelmingly to create the new rules governing investigations into the president. One possible explanation is that Douglas Letter, the lawyer for the House, delivered an utterly disastrous performance at oral argument — he was repeatedly unable to answer obvious questions from the justices, such as what might be reasonable limits on congressional subpoenas, if the Court were to impose such limits.
Another possible explanation is that the Court’s liberals simply lacked the votes to order the House subpoenas enforced, so they decided that it was better to cast their lot with Roberts than to risk having their conservative colleagues unite behind a rule that was even more favorable to Trump.
The liberal justices may also have been concerned about too-aggressive probes into a potential Biden administration — although, as the holding in Mazars specifically concerns the president, a Republican-controlled Congress could still investigate Biden White House officials or members of his Cabinet.
In any event, it’s also not immediately clear how the new rules will apply to each of the three congressional investigations, and that lack of clarity is why Mazars is such an important victory for Trump. This case will now be reheard by a trial court, which will have to conduct its own probe into how the three investigations fit within these new rules. Before that trial can even take place, House lawyers will need to comb through Mazars and likely make changes to the existing subpoenas so that they are more likely to survive judicial review. Even if the trial court does rule against Trump, that decision will be appealed to a lower appellate court — and the case could potentially be heard again by the Supreme Court.
By the time this is all over, months or even years will have passed. If Trump loses the election, he’ll be a private citizen who no longer wields power over anyone. If Trump wins, he could be winding down his second term by the time anyone in the House sees his financial records. And that’s assuming that Republicans do not regain control of the House and cancel the investigations.
Should a future Republican Congress wish to probe a future Democratic president, by contrast, that Congress will already know about the limits laid out in Mazars, so it will be able to tailor its subpoenas to those limits in advance.
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Author: Ian Millhiser
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