The story of rule of law in the age of Trump is that it has pushed back on the president, although never as completely or as rapidly as it should. We have another important example of that in Thursday’s 7-2 decisions in Trump v. Vance and in Trump v. Mazars USA. Although they mean Trump’s tax and other information likely will not emerge before November 3, they portend accountability for the President, including possible state prosecution in 2021 whether he is in or out of office. That is fundamentally good news for the rule of law.
In resolving these cases involving subpoenas sent to an accounting firm and a bank for ten years’ worth of Trump’s financial records, the Supreme Court in Vance gave the go ahead to a Manhattan grand jury obtaining the material. That case has been remanded to the trial court for further proceedings which could move relatively quickly.
Congress on the other hand in Mazars got a set of guidelines and a remand for the trial court to apply them to the subpoenas at issue. Congress will likely get some of the documents but it will take a longer time to navigate the new rules the Court established. More appeals certainly will be forthcoming.
The Vance decision was a cleaner win for the rule of law. The Manhattan District Attorney, Cyrus Vance, Jr., on remand has the clear go ahead to subpoena Trump’s accounting firm as part of his investigation into possible tax crimes, some potentially involving hush money payments made by Trump to women with whom he had affairs. The decision is no surprise, coming as it does more than 45 years after the Court unanimously ordered President Richard Nixon to turn over Oval Office recordings to a special criminal prosecutor and 24 years after a unanimous Court made President Bill Clinton answerable in a civil case involving conduct before he took office.
Trump has significant state law criminal exposure in connection with his hush money payments (for which his fixer Michael Cohen has already gone to jail on federal charges)—and more. For more on that, read the analysis of Martin J. Sheil, former Supervisory Special Agent of IRS Criminal Investigations. Trump cannot pardon himself for state law offenses on his way out the door. And the Justice Department’s position that a sitting president cannot be indicted does not bind New York state authorities.
So Trump may well face charges, though he may also be out of office by the time he does. Much will depend on how briskly the trial court moves on remand, on whether there are emergency or other appeals, and how quickly they are brushed aside (as they will be). The Supreme Court has expedited that process by providing general guidelines for how Vance (and the trial and appellate courts) should proceed. The Nixon subpoena case and the 2000 Bush v. Gore case show the speed by which matters of such great public import can be quickly decided, as Laurence Tribe has noted.
The Mazars and Deutsche Bank outcome, while a win for the rule of law, is a more nuanced one. On the one hand the Court upheld the longstanding principle that Congress can subpoena documents and that the scope of its lawmaking and investigative power is quite broad. But ever the adept compromiser, Chief Justice John Roberts wrote a split-the-baby decision. The case is now sent back to a District Court to administer a five-part test established by Roberts with a view toward mediating the conflict between the presidency and Congress. Going forward, before Congress can demand documents from a President it must demonstrate the necessity, narrowness, and purpose of the request. Then courts will assess the burden imposed on the President and other factors before deciding whether the subpoena will proceed. The case will churn and churn again in the courts for months, likely well beyond the next election.
Respectfully, Congress already satisfied preexisting and well-established standards before the case was brought. The lower courts held as much and were right. (Full disclosure, one of us was a special counsel to the House Judiciary Committee majority during the impeachment proceedings and trial, which involved overlapping legal issues.) Last year, when the House subpoenas were issued by three committees, they were carefully considered and came in the wake of hearings, analysis, and steady inquiry into a host of constitutional and legal issues raised by the president’s behavior. The material requested was not a matter of prurient interest.
The bottom line is that Congress will surely meet the test (again), and will get the material, but not for a while and certainly not before November 3. That is a disappointment, but the larger point was always to defend the rule of law, as exigent a cause as there is in America today. The decision handed down today will help maintain checks and balances for whomever is next seated in the Oval Office. And in future, presidents will not be able to stall by litigating the threshold question of whether they are immune from such subpoenas. The Supreme Court has properly resolved that matter once and for all.
The bottom line is that Thursday’s decisions are far from the catastrophe many feared. In the long run, the day brought a dramatic loss for Trump in the Vance case and a nuanced defeat for him in Mazars that will play out more slowly and partially. Added together: Trump is going to face accountability, possibly criminal. After today’s rulings, the fight for justice goes on. That is a glass well over half full.