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On July 9, the Supreme Court decided Trump v. Vance, rejecting both the president’s position that he was absolutely immune from a subpoena from the New York County District Attorney’s Office and the solicitor general’s position that the subpoena should be subject to a heightened need standard. Writing in four separate opinions, the justices were unanimous that President Trump was not absolutely immune from a state court criminal subpoena to a third party for his financial records. And the five justices in the majority, along with Justice Clarence Thomas in his dissent, agreed that the subpoena did not have to be subject to a heightened need standard.
In 2019, acting on behalf of a grand jury, New York County District Attorney Cy Vance served a subpoena on Mazars, USA, the president’s accounting firm, seeking various financial records. Trump sued in his personal capacity to block the subpoena. The U.S. Court of Appeals for the Second Circuit ruled against Trump, holding that “presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material” and that the subpoena was not subject to a heightened need standard.
As Chief Justice John Roberts pointed out in the first paragraph of the majority opinion, this case represented the first time the Supreme Court had the opportunity to decide what the standard should be for a “state criminal subpoena directed to the President.” (Although the subpoena was technically to Mazars rather than Trump himself, Roberts wrote in a footnote that “for purposes of immunity, it is functionally a subpoena issued to the President,” because Mazars was the custodian of papers belonging to the president.) Vance was one of two presidential subpoena cases decided by the Supreme Court on July 9; the other, Trump v. Mazars USA, LLP, involved subpoenas from the House of Representatives. (A summary of the Mazars decision is available here.) As the Supreme Court observed, however, the subpoenas at issue in both cases involved very similar language, and both concerned requests directed at Mazars; the “principal difference” is that Vance’s subpoena “expressly requests tax returns.” (Despite the case title, Mazars also involved subpoenas by congressional committees to Deutsche Bank and Capital One as well as Mazars.)
The chief justice wrote for the majority and was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justice Brett Kavanaugh wrote a concurring opinion, joined by Justice Neil Gorsuch. Justice Thomas and Justice Samuel Alito wrote separate dissents.
The Majority Opinion
The majority opinion emphasizes the common law heritage of the principle that “the public has a right to every man’s evidence”—including the president’s.
Roberts opens with an extended description of the history and background of the prosecution of Aaron Burr for treason in 1807. In that case, Burr sought to subpoena President Thomas Jefferson for documents that he believed were important for his defense. Chief Justice John Marshall decided that Jefferson was not immune from either testifying in the case or responding to the subpoena. Roberts identifies the Burr case as the foundation of a consensus that has emerged in the case law in the 200 years since the ruling: “[S]uccessive Presidents have accepted Marshall’s ruling that the Chief Executive is subject to subpoena,” including when they are called to testify in a criminal proceeding (as Presidents Grant, Ford, Carter and Clinton did) and disclose official, privileged communications (as Nixon did following United States v. Nixon).
After laying out that history and precedent, Roberts addresses the principal distinction between this case and the ones before: Vance is a state prosecutor, while previous cases involved federal criminal proceedings. Precedent makes clear, Roberts states, that criminal subpoenas by federal authorities do not interfere with the president’s constitutional functions. But Trump argued that under the Supremacy Clause of Article VI of the Constitution and because of his Article II obligations, he has absolute immunity from state criminal subpoenas. The solicitor general agreed that Mazars should not respond to the subpoena but argued that, instead of absolute immunity, the Supreme Court should apply a standard of heightened need instead (and that the subpoena did not meet that standard).
The president (at times joined by the solicitor general) argued that state criminal subpoenas in general impose three additional and unacceptable burdens on his ability to govern: “diversion, stigma, and harassment.” Roberts rejects each in turn.
First, he notes that Clinton v. Jones, in which President Clinton argued that he should be immune from civil liability for private conduct, “expressly rejected immunity based on distraction alone.” And although the Supreme Court held in Nixon v. Fitzgerald that the president was absolutely immune from damages liability for official acts, the Fitzgerald court’s main concern was that the president might carry out his duties differently if he was subject to potential civil liability, not that he would be distracted by ongoing litigation. Roberts further cites “two centuries of experience” with “properly tailored criminal subpoena[s]” that did not interfere with the president’s constitutional duties. Finally, because Trump concedes that prosecutors may investigate the president so that they may possibly charge him after he steps down from office, he cannot assert that the distraction of the investigation itself is impermissible. Instead, the chief justice explains, Trump must assert that “the additional distraction caused by the subpoena” interferes with his constitutional duties (emphasis in original). This conflicts with Burr and United States v. Nixon’s holdings about the susceptibility to subpoena of the president’s official communications.
Next, the chief justice addresses the president’s claim that “the stigma of being subpoenaed [would] undermine his leadership at home and abroad.” Citing Clinton and United States v. Nixon, which denied absolute immunity from federal civil and criminal process even though “serious misconduct” by the president was alleged, Roberts states that there is no difference between the reputational costs of such process in federal cases and in state court. Roberts notes that, even if there were, there are “longstanding rules of grand jury secrecy”—and while this lawsuit “cast the Mazars subpoena into the spotlight,” there are disclosure rules and penalties to protect the president from any stigma that could result from the revelation that his information was subpoenaed.
Finally, the chief justice rejects the claim that the president will be subject to harassment by state criminal subpoenas. Trump had warned that local prosecutors are more likely than federal prosecutors to play politics and fail to respect the office of the presidency. But Roberts cites the Supreme Court’s precedent prohibiting fishing investigations and the ability of federal courts to intervene in a state court proceeding if it is intended to harass. And he explains that state judges and prosecutors cannot “interfer[e] with a President’s official duties” under the Supremacy Clause. The president could challenge “any allegedly unconstitutional influence in a federal forum.”
Roberts next addresses the solicitor general’s proposal for a heightened need standard, which would “require a threshold showing that the evidence sought is ‘critical’ for ‘specific charging decisions’ and that the subpoena is a ‘last resort,’” because the evidence is “not available from any other source” and the party seeking the subpoena needs the evidence before the end of the president’s term. This standard is imported from executive privilege cases, like United States v. Nixon, which concerned official (rather than personal) papers.
In Roberts’s view, this standard is inappropriate for three reasons. First, it would apply a standard meant for the president’s official documents to his private papers, contradicting important language in Burr. Second, Roberts is not convinced that the heightened need standard is necessary for the president to fulfill his constitutional functions in the state context, given that the standard is not applicable in the federal context. Third, the public has an important interest in “fair and effective law enforcement”—which requires the grand jury’s ability to investigate and the state’s ability to follow important leads in a timely fashion and potentially uncover exculpatory evidence.
Even though the majority held that the president is not absolutely immune and that a state grand jury subpoena for presidential information is not subject to a heightened need standard, the chief justice emphasizes that the president was still protected by state law and the Constitution. The president could challenge an inappropriate subpoena under state legal provisions such as those protecting from subpoenas that place an undue burden—or he could argue that a particular subpoena might influence his official duties and violate the Supremacy Clause, or “impede his constitutional duties.”
Roberts closes by noting that the holding in the case is limited to addressing absolute immunity and heightened need. He remands the case to the district court for further proceedings—noting that the president will be able to raise other arguments about the subpoena, but not that he is absolutely immune or that the subpoena must meet a heightened need standard.
The Concurrence in the Judgment
Kavanaugh, joined by Gorsuch, concurs in the judgment. Kavanaugh agrees that the president does not have absolute immunity and that the case should be remanded to the district court so that the president may raise appropriate objections to the subpoena. But, Kavanaugh explains, he would have applied the heightened need standard from United States v. Nixon—which applies to executive privilege over official papers—to the personal papers in this case.
Kavanaugh frames the case as “a conflict between a State’s interest in criminal investigation and the President’s Article II interest in performing his or her duties without undue interference.” Although “no one is above the law,” he writes, the president is not “an ordinary litigant.” He would use the heightened need standard to balance the state’s interest with the president’s. Although the majority refused to apply that standard, Kavanaugh observes that, in practice, lower courts will likely ask questions about the subpoena that may in effect narrow the differences between his approach and the majority’s.
Thomas dissents. He agrees with the majority that the president is not entitled to absolute immunity “from issuance of the subpoena,” but he states that the president “may be entitled to relief against its enforcement.” (In a footnote, Thomas notes that he would also reject the solicitor general’s heightened need standard, because the focus should be on the interference with the president’s duties, rather than the jury’s need for particular information.)
He distinguishes his originalist approach from the majority’s “primarily functionalist analysis.” His analysis draws on documents from the time of the Founding and Burr to find that the president is not absolutely immune from the subpoena’s issuance. Moving to the question of the president’s relief from the enforcement of the subpoena, Thomas argues that, under Burr, “[i]f the President is unable to comply [with the subpoena] because of his official duties, then he is entitled to injunctive and declaratory relief.” This standard applies whether the subpoena is issued at the state or federal level.
Thomas then describes two important dynamics that affect how this standard operates. First, the president has “vast responsibilities” under the Constitution and central to the governance of the country. Even if the president does not personally have to comply with the subpoena, it “imposes both demands on the President’s limited time and a mental burden” on him. Second, “courts are poorly situated to conduct a searching review of the President’s assertion that he is unable to comply” with a subpoena. Judges do not have access to the information or the expertise required to deny a president’s assertion that he is unable to comply with a subpoena. Thomas would therefore have vacated the Second Circuit’s decision and remanded it to determine if the enforcement of the subpoena should be enjoined.
Alito also dissents, writing that he would have applied a heightened standard for the subpoena but not absolute immunity. He centers his opinion around the question of “whether the Constitution imposes restrictions on a State’s deployment of its criminal law enforcement powers against a sitting President,” which he views as integral to the question of whether the state grand jury subpoena can be enforced.
Alito’s opinion pointed to two “structural features” of the Constitution—the “nature and role of the Presidency” and federalism—to argue that “a State’s sovereign power to enforce its criminal laws must accommodate” the president’s “indispensable” constitutional role. Because of this indispensability, “there is no question that ... in some instances ... the application of laws” must “be adjusted at least until” the end of the president’s term in office.
After describing what he sees as the essential impossibility of a state criminal prosecution against the president, Alito addresses the subpoena itself. Although the case involves only a single subpoena addressed to a third party, Alito argues that the Supreme Court should adopt a rule to address how subpoenas could affect or potentially harass the president. He describes the immense burdens imposed by the shadow of a potential criminal prosecution and the incentives for state and local prosecutors to harass the president.
As a result, Alito argues, a subpoena like this one “should not be allowed unless a heightened standard is met.” His standard would require the prosecutor “(1) to provide at least a general description of the possible offenses that are under investigation, (2) to outline how the subpoenaed records relate to those offenses, and (3) to explain why it is important that the records be produced and why it is necessary for production to occur while the President stood in office.” In this case, Alito writes, Vance should be required to answer questions about the scope of the subpoena and the need for the president’s records in particular.
This stands in contrast to the majority’s opinion, where, Alito claims, the president was “relegate[d] ... to the meager defenses that are available when an ordinary grand jury subpoena is challenged.” He disagrees with the majority’s view of what he sees as the heightened risk of harassment from state prosecutors; what he worries are inadequately strong grand jury secrecy rules; and what he argues is the limited usefulness of the president’s ability to argue that his constitutional duties would be impeded by compliance with subpoena. As a result of the majority’s opinion, he states, the president is practically “in the same unenviable position as any other person whose records are subpoenaed by a grand jury.”
Finally, Alito addresses the majority’s use of precedent. He distinguishes Vance from Burr: Unlike the subpoena in Burr, this subpoena is not seeking “exculpatory evidence from the very man who was orchestrating his prosecution;” the nature of the criminal case meant that Burr couldn’t postpone his request until Jefferson was out of office; and finally, because Burr was a federal prosecution, the case “entirely lacked the federalism concerns” in Vance. While the majority cited cases concerning subpoenas to the president, Alito argues that the courts in those cases allowed the president leeway that they would not have given to an ordinary person, including not being forced to testify in person. Finally, Alito writes, both the criminal nature of the investigation at issue in Vance and its origin in state court distinguishes it from previous cases like United States v. Nixon and Clinton v. Jones. He closes by reiterating his view that the decision “threatens to impair the functioning of the presidency” and fails to provide the president with adequate safeguards against state and local prosecutors around the country.