Does a sitting president enjoy absolute immunity from a grand-jury subpoena seeking 10 years’ worth of the president’s financial records, even if the subpoena was served on his accounting firm, and not himself?
This case asks the Supreme Court to decide whether a grand-jury subpoena served on the president’s accounting firm that demands 10 years’ worth of the president’s financial records comports with the Constitution. President Trump argues that Article II renders the president categorically immune to any criminal process while in office. This is especially so here, President Trump argues, where the Supremacy Clause asserts the primacy of federal interests over those of state courts, and where the criminal nature of the subpoena imposes a stigma. Vance counters that Article II and the Supremacy Clause do not apply where the particular legal process does not implicate or impinge on the president’s official conduct. Vance points to the Court’s centuries-long practice of enforcing presidential subpoenas. The outcome of this case will significantly affect local officials’ ability to launch investigations into matters concerning sitting presidents, as well as presidents’ immunity from grand jury investigations while in office.
Questions as Framed for the Court by the Parties
Whether a grand-jury subpoena served on a custodian of the president’s personal records, demanding production of nearly 10 years’ worth of the president’s financial papers and his tax returns, violates Article II and the Supremacy Clause of the Constitution.
In 2018, the District Attorney of the County of New York (“District Attorney”) initiated a grand jury investigation into “whether several individuals and entities have committed criminal violations of New York law.” Trump v. Vance at 635. As part of this investigation, the District Attorney issued a grand jury subpoena duces tecum to the Trump Organization on August 1, 2019, seeking materials over a three-year period relating to “suspected ‘hush money payments’ made to two women.” Id. The Trump Organization complied with the subpoena. Id. Shortly after, the District Attorney notified the Trump Organization that the subpoena required production of Petitioner President Trump’s personal tax returns. Id. The Trump Organization refused to produce any tax records. Id.
The District Attorney then served another subpoena duces tecum on August 29, 2019 on Mazars USA LLP (“Mazars subpoena”), an accounting firm that held President Trump’s personal financial records. Id. The subpoena sought production of President Trump’s personal tax records, as well as those for the entities he owned before he became president, dating from January 1, 2011 to the present. Id.
After the District Attorney served the subpoena on Mazars, President Trump filed a complaint in the United States District Court for the Southern District of New York (the “District Court”), arguing that the Constitution grants a sitting president temporary immunity from all stages of state criminal process while in office, including subpoenas issued during a pre-indictment investigation, like the Mazars subpoena. Id. at 636, 640. President Trump sought a permanent injunction prohibiting enforcement of the Mazars subpoena. Id. at 636. The District Court dismissed President Trump’s complaint on procedural grounds, finding that it was required under Younger v. Harris to “abstain from exercising jurisdiction” because the request must be brought in state court. Id. Even if it was not required to abstain from exercising jurisdiction, the District Court alternatively held that President Trump was not entitled to injunctive relief and denied his motion for a permanent injunction. Id. at 636, 639.
President Trump appealed to the United States Court of Appeals for the Second Circuit (the “Second Circuit”). Id. at 636. The Second Circuit vacated the District Court’s judgment, holding that it erred in abstaining from exercising jurisdiction over the case. Id. at 639. The Second Circuit reasoned that the District Court should have exercised jurisdiction over the case because President Trump raised “novel and serious claims that are more appropriately adjudicated in federal court.” Id. The Second Circuit, however, affirmed the District Court’s alternative holding denying President Trump’s request for a permanent injunction, finding that President Trump failed to demonstrate that he is likely to prevail on the merits of his immunity claim. Id. at 646. The Second Circuit relied on the Supreme Court’s decision in United States v. Nixon, which held that presidential immunity does not allow a sitting president to resist compliance with a subpoena for confidential information regarding official communications. Id. at 640–42. The Second Circuit reasoned that the Mazars subpoena should be enforced because it does not seek information about President Trump’s actions as president, but rather seeks financial information related to businesses he owns as a private citizen. Id. at 641. The Second Circuit also noted that President Trump is not harmed by the Mazars subpoena because it is directed at his accounting firm and therefore requires nothing of him. Id. at 642. Ultimately, the Second Circuit held that presidential immunity does not prevent a state grand jury from issuing a subpoena to a third party during an investigation into potential crimes, even if that investigation “may in some way implicate the President.” Id. at 644.
THE EXECUTIVE’S SPECIAL POSITION
President Trump contends that the Constitution confers on him absolute immunity from any criminal proceedings during his presidency. Brief for Petitioner, Donald J. Trump at 19. He argues that in vesting executive power in a single individual, Article II recognizes the president’s unique status. Id. at 20. The United States, in support of President Trump, contrasts Article II’s conception of the “indispensable” president with Article I’s provisions permitting Congress to assemble as infrequently as once per year and to conduct business with only half of its members. Brief for the United States, in Support of Petitioner at 8. Complying with criminal proceedings, President Trump argues, may distract the president and paralyze the government in foreign and domestic affairs. Brief for Petitioner at 23. President Trump contends that the Constitution’s impeachment provisions, which protect the executive from indictment while in office, signal the Framers’ intent to shield the president from any kind of criminal proceedings whatsoever. Id. at 21–22. President Trump contends in the alternative that even if he is not immune from this subpoena, the Supreme Court in United States v. Nixon has still categorically imposed a heightened standard for issuing subpoenas on presidents. Id. at 45. President Trump and the United States assert that Vance needed to show a “demonstrated, specific need,” a requirement that applies, President Trump contends, regardless of whether the material falls within the president’s evidentiary executive privilege. Brief for Petitioner at 45; Brief for the United States at 27.
Vance counters that Article II protects the president only from criminal proceedings that would interfere with his official, rather than personal, conduct. Brief for Respondent, Cyrus R. Vance, Jr. at 12–13. Vance notes instances in the Nixon and Clinton v. Jones cases where the Court distinguished such conduct. Id. at 13. Vance quotes the Clinton Court, which reasoned that the separation-of-powers rationale for Article II’s protections applies only where it is a matter of allocating “official power among the three coequal branches.” Id. at 14. Vance draws a parallel to the scope of the president’s evidentiary privilege, which applies only to communications relating to his official capacity, not to his personal communications. Id. As to the heightened standard that President Trump and the United States would require of the subpoena, Vance agrees that such a standard would be appropriate where the material is privileged and implicates official matters, but contends that it does not apply here, where the subpoena is confined to personal records. Id. at 41. Vance contends that Article II still gives courts leeway to reject particular subpoenas as harassing or as interfering with the president’s official functions. Id. at 42–43. But Vance contends that it is the president’s burden to demonstrate such interference in the first instance. Id. at 44.
FEDERALISM AND THE SUPREMACY CLAUSE
President Trump contends that presidential immunity from criminal proceedings is “at its apex” when the subpoena is coming from a state or local government. Brief for Petitioner at 23. Article VI’s Supremacy Clause, President Trump argues, serves precisely to prevent states from interfering in the federal government’s functions. Id. at 24–25. While conceding that the Supremacy Clause protects other federal officials only from interference with their official acts, President Trump contends that the Clause must, by necessity, apply broadly to the president. Id. at 25. He argues that, given the government’s federalist framework, the Framers would never have intended to allow innumerable state and local authorities to submit the president to criminal process and thus to “prostrat[e] it at the foot of the states” (quoting McCulloch v. Maryland). Id. President Trump contends that the apparent lack of any precedent for a state opening a criminal investigation about a sitting president indicates that no one thought that states ever had this power. Id. at 28. President Trump distinguishes this case from Nixon and Clinton, which both involved federal litigation. Id. at 39–40. Whereas denying the subpoena in Nixon would have offended federal courts and the separation of powers, denying it here would only reaffirm the federal government’s supremacy, under which state interests are utterly subordinate to federal interests. Id. at 40; see Brief for the United States at 14. Indeed, President Trump notes, the Court in Clinton distinguished Clinton from a case where there would be “federalism” concerns and “possible local prejudice.” Brief for Petitioner at 40.
Mirroring his Article II argument, Vance contends that the Supremacy Clause, like Article II, grants the president immunity only as to his official acts. Brief for Respondent at 15–16. He contends that the Supremacy Clause’s structural purpose is to resolve conflicts between the federal government and the states. Id. at 15. Vance argues that when a state is investigating a president’s private conduct, however, there is no conflict and the Clause does not apply. Id. at 16. Vance contends that the Clinton Court, by expressing its concern for a case in which a state court issued the process, was likely contemplating a case where the process interfered with the president’s official duties. Id. Vance contends that the subpoena here is far removed from such concerns, since this subpoena does not so interfere and was issued to a third party. Id. On the contrary, Vance contends that the Tenth Amendment affirmatively reserves for the states any powers not expressly granted to the federal government. Id. at 32. This includes a generalized police power for a state over matters within a state’s territory, including the authority to issue subpoenas. Id.
WOULD A THIRD-PARTY GRAND JURY SUBPOENA DISRUPT EXECUTIVE FUNCTIONS?
President Trump argues that grand jury subpoenas should be among the forms of process to which presidents are immune. Brief for Petitioner at 29. Characterizing himself as the subpoena’s “target” here, President Trump contends that the subpoena interferes with his official capacity because of the mental burden and the stigma that it imposes. Id. That the subpoena is directed to his custodian is beside the point, President Trump argues; the president’s own records are still at issue. Id. at 38. The subpoena burdens him by requiring that he “consult with his attorneys, consider the need to assert available privileges, and otherwise participate in his defense.” Id. Moreover, the United States adds, some states, like New York, permit grand juries complete freedom to issue subpoenas, so long as they are even remotely relevant to a “legitimate object of investigation.” Brief for the United States at 16. Because the subpoenas risk interfering with the president’s official duties, President Trump contends that the Court has in the past, and should in this case, grant the president categorical immunity. Brief for Petitioner at 36–37. President Trump distinguishes this case from Clinton and Nixon: the subpoena here is a greater burden than the one issued to Clinton, President Trump argues, because this is a criminal, rather than a civil case; and it is greater than the one issued to Nixon because Nixon was merely a witness in that investigation, whereas President Trump is the target of this investigation. Id. at 41–42. Finally, President Trump contends that granting immunity here would not interfere with the grand jury’s investigation because the statute of limitations would likely be tolled until he leaves office. Id. at 33.
Vance counters that the “mere risk” that a grand jury subpoena will interfere with a president’s official functions does not suffice to confer immunity on the president. Brief for Respondent at 17. Vance cites several instances where the Court has compelled presidents to comply with subpoenas, including when Chief Justice Marshall rejected President Jefferson’s immunity defense and ruled that the president’s susceptibility to subpoenas “is not controverted.” Id. at 20. Vance notes that the Court made no exception to this no-immunity stance even in Nixon, where the subpoena implicated official conduct and official communications. Id. at 21. Further, Vance notes, the Court in Clinton recognized that courts could still weed out and impose sanctions for harassing requests. Id. at 18, 20. The Mazars subpoena, Vance argues, is less burdensome than the subpoena requiring Nixon to testify under oath and to produce tapes with privileged conversations with his advisors. Id. at 27. Finally, Vance disputes President Trump’s claim that grand jury subpoenas impose a stigma. Id. at 28. Vance explains that such subpoenas do not allege wrongdoing and, unlike indictments or prosecutions, are secret. Id. at 29. Vance contends that this grand jury subpoena, therefore, imposes significantly less burden than Nixon’s subpoena, which would have led him to implicate himself in a criminal conspiracy, or Clinton’s subpoena, which could have led to civil liability. Id. at 30.
THE BURDENS IMPOSED ON THE PRESIDENT
The Christian Family Coalition (“CFC”), in support of President Trump, asserts that the Mazars subpoena may distract and divert the president’s time and energy away from his official presidential duties. Brief of Amicus Curiae Christian Family Coalition, in Support of Petitioner at 4. The CFC argues that any reasonable client issued a grand jury subpoena would be distracted from his or her day-to-day responsibilities because the real-life consequences are severe, such as criminal indictment. Id. at 4–5. The CFC contends that this distraction is especially concerning for the president, who is expected to serve as the Commander-in-Chief of the nation’s armed forces, the Chief Executive of the United States government, and the person responsible for the proper functioning of the Executive Branch at all times. Id. at 4. The CFC asserts that the Mazars subpoena ultimately harms the public, who depend on the president’s undistracted and unimpaired attention to important matters. Id. at 9. Further, CFC argues that the problem is not the physical burden of production—which would likely fall on President Trump’s accounting firm regardless of who was issued the subpoena—but rather the mental burdens of distraction, concern, and diverted attention. Id. at 5, 9.
In response, the American Civil Liberties Union and the New York Civil Liberties Union (collectively “ACLU”), in support of Vance, assert that the Mazars subpoena does not impose any burdens on President Trump’s presidential duties, and that President Trump’s claimed burdens are overly generalized. Brief of Amici Curiae, American Civil Liberties Union (“ACLU”) et al., in Support of Respondent at 23. Specifically, the ACLU argues that President Trump is not entitled to immunity because he has not pinpointed any specific burden imposed by the Mazars subpoena. Id. at 25. In terms of physical burdens, former Department of Justice officials contend that President Trump will not expend any time or energy on the Mazars subpoena because he was not the recipient of it, and therefore is not required to produce anything. Brief of Amici Curiae Former Department of Justice Officials, in Support of Respondent at 23–24. In terms of mental burdens, the ACLU asserts that President Trump has failed to explain how generalized distraction will specifically impede his ability to perform his presidential duties. Brief of ACLU at 25–26. Even if the Mazars subpoena imposes mental burdens on President Trump, the ACLU argues that diverted attention and distraction are an “inescapable and tolerable ‘byproduct’ of any litigation, even for the President.” Id. at 25.
WILL THE MAZARS SUBPOENA SPUR A FLOOD OF LOCAL INVESTIGATIONS?
The United States, in support of President Trump, asserts that the Mazars subpoena will encourage local prosecutors to initiate a flood of criminal proceedings against sitting presidents, allowing them to harass presidents based on political biases. Brief of Amicus Curiae United States, in Support of Petitioner at 15–16. The United States argues that local prosecutors may have a perverse incentive to investigate a sitting president because more than 2,300 prosecutors are elected locally, and therefore are not accountable to the president. Id. at 18. Specifically, the United States argues that local prosecutors might feel pressured to subpoena a sitting president if their communities strongly oppose the president’s policies. Id. In support of this assertion, the United States notes several instances where local officials brought frivolous investigations against sitting presidents, typically motivated by local politics. Id. at 18–19. Further, the United States argues that the risk of local prejudice is heightened by the sheer number of local prosecutors—each of the 2,300 local prosecutors could target the sitting president with a criminal investigation if the Mazars subpoena were permitted, imposing substantial cumulative burdens on the president. Id. at 21–22.
A group of former Republican politicians (collectively “Republicans”), in support of Vance, counter that President Trump’s prediction that the Mazars subpoena will spur multiple simultaneous local investigations is speculative and unrealistic. Brief of Amici Curiae Former Republican Members of Congress et al., in Support of Respondent at 20–22. The Republicans argue that by assuming local prosecutors will abuse their authority and harass sitting presidents, President Trump contravenes a longstanding presumption: that locally elected officials act in good faith. Id. at 18, 22. Even if locally-elected officials do act in bad faith, Claire Finkelstein and the Center for Ethics and the Rule of Law contend that binding rules of ethics and professional conduct ensure that they are disciplined for doing so. Brief of Amici Curiae Claire Finkelstein et al., in Support of Respondent at 25–26. Moreover, a group of Washington State tax lawyers assert that President Trump’s prediction is overstated because prosecutors may only bring investigations within their jurisdiction, and therefore only a handful of the 2,300 local prosecutors will have jurisdiction over a given case. Brief of Amici Curiae Washington State Tax Practitioners, in Support of Respondent at 13–14.
- Jacques Singer-Emery, What ‘Trump v. Vance’ Holding Means for Presidential Corruption and Malfeasance, New York Law Journal (Dec. 17, 2019).
- James Nani, Vance Tells High Court Trump’s Immunity Claim ‘Flawed’, Law 360 (Feb. 26, 2020).
- Christina Ge, Trump v. Vance: An Assault on the Constitution, Brown Political Review (Jan. 8, 2020).