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On the final opinion day of a blockbuster U.S. Supreme Court term, the justices ruled in two landmark separation-of-powers fights—one between President Donald Trump and New York prosecutors and one between Trump and Congress. The two decisions, each a 7-2 vote, clear the way for those investigating the president to continue their pursuit of his financial records.
“In our judicial system, ‘the public has a right to every man’s evidence,’” Chief Justice John Roberts wrote in the New York opinion. “Since the earliest days of the Republic, ‘every man’ has included the President of the United States.”
The justices rejected the argument that the president enjoys total immunity from criminal investigations while in office and that prosecutors have to follow a “heightened” standard to demonstrate a need for information. But the high court also rejected an expansive interpretation of Congress’ power to request information. Instead the court posed a series of tests for Congress to prove it wants the president’s records for legitimate legislative purposes.
Because the court sent both cases back to the lower courts, Trump’s records are unlikely to be public anytime soon.
“In both the court said, ‘You used the wrong standards. Here are the standards we want you to use,’” Adam Carrington, assistant professor of politics at Hillsdale College, said. He believes New York prosecutors are more likely to get Trump’s tax records under the standards the high court articulated. It’s less clear that Congress will succeed.
In both cases, Chief Justice John Roberts wrote the majority opinion and Justices Clarence Thomas and Samuel Alito each wrote dissents.
Trump v. Vance began with an investigation by Cyrus Vance Jr., the Democratic district attorney for New York County. Vance said he needed records from Trump’s accounting firm, Mazars USA. He was investigating hush money payments that the president’s former personal lawyer, Michael Cohen, made to two women who alleged extra-marital affairs with Trump.
Trump’s lawyers argued the president should enjoy total immunity from criminal subpoenas while in office, and the Justice Department’s solicitor general argued prosecutors should have to demonstrate a “heightened need” to access the president’s information.
The Supreme Court rejected both arguments. Even the dissenting justices who favored a “heightened need” standard for investigators rejected Trump’s broad immunity claim. “Requiring a state grand jury to meet a heightened standard of need would hobble the grand jury’s ability to acquire ‘all information that might possibly bear on its investigation,’” Roberts wrote.
A grand jury is currently overseeing Vance’s investigation. Proceedings are secret by law, so Trump’s records likely won’t become public anytime soon even if a lower court rules against him.
Thursday’s decision leaves open the possibility for the president to continue fighting the records’ release. “Rejecting a heightened need standard does not leave Presidents with no real protection … A President may avail himself of the same protections available to every other citizen,” Roberts wrote.
Trump can still argue a specific subpoena was issued in bad faith, presents an undue burden, or casts too wide a net. He can also challenge a subpoena on constitutional grounds and argue it would impede his presidential responsibilities or is an illegal attempt to influence how he carries those duties out.
In a statement, Vance called the decision a “tremendous victory for our nation’s system of justice and its founding principle that no one—not even a president—is above the law.” He said the office would press forward with its investigation.
The other case, Trump v. Mazars USA LLP, began after three Democratic-led committees in the House of Representatives issued subpoenas to the president’s long-term accounting and banking institutions. The requests came after Cohen testified that the president inaccurately reported his financial information. Cohen said Trump both exaggerated and deflated his personal assets in schemes to get loans and avoid taxes.
The request was much more expansive than Vance’s. In addition to wanting years of information from around seven financial and business entities connected with the president, lawmakers also requested information from the president’s adult children: Donald Trump Jr., Eric Trump, and Ivanka Trump. Lawmakers said they needed the information to toughen conflict-of-interest, money laundering, and foreign interference laws.
The financial institutions signaled a willingness to hand over the documents but only under court order.
Trump’s lawyers argued the requests exceeded Congress’ authority and constituted a “fishing expedition” that lacked a legitimate legislative purpose. They also argued that such a request, unless for an impeachment inquiry, was illegitimate. Lawyers for the House committees argued lawmakers should have almost no limits on their ability to request information that would aid in legislating.
The justices sided with neither branch completely. They dismissed Trump’s argument that the House could only request information for an impeachment inquiry.
But they also rejected Congress’ broad interpretation of its power. The majority came up with a new, four-part test for lawmakers when seeking a president’s personal information: Can they obtain the information elsewhere, is the request is as narrow as possible, can lawmakers explain specifically how the information will further the legislative process, and did they consider the burden such a request places on a president?
Otherwise, the justices warned, overzealous lawmakers could “declare open season on the President’s information held by schools, archives, internet service providers, email clients, and financial institutions.”
“I’m certain the lawyers from the committees involved are going to be rewriting their requests for subpoenas,” Amy Black, professor of political science at Wheaton College, said. “This opens up criteria for Congress to try again but still keeps the door open for the president to say, ‘These requests do not meet [the Supreme Court’s] standard.’”
The majority warned the lower courts to “take adequate account of the separation of powers principles at stake.”
In his dissent, Thomas called the new test “better than nothing” but warned Congress doesn’t have the authority to launch a “nationwide inquisition.” He wrote that Congress should not be able to request such information except in impeachment inquiries.
Taken together, the decisions mean Trump will not be able to “unilaterally stonewall other branches or other entities from getting information,” Carrington said. “A very strong, wide, almost unilateral view of presidential power was pushed back by this. But at the same time it has left the president still with tools to argue … he has tools but he doesn’t have absolute discretion on this.”
Trump lawyer Jay Sekulow said in a statement that, “we will now proceed to raise additional constitutional and legal issues in the lower courts.”
Meanwhile, Democrats lamented the fact that no explosive revelations will come before the Nov. 3 presidential election.
“While defeated on his claim that he’s above the law, Trump is now beyond the law until after November,” said Rep. Lloyd Doggett, D-Texas, a member of one of the committees that had requested Trump’s financial information. “He may not be able to outrun the law, but he’s outrunning the clock.”