Supreme Court Oral Argument Preview: Trump Financial Documents Cases

Charlotte Butash
Tuesday, May 12, 2020, 7:00 AM

The outcome of these three cases could have significant implications for congressional power, the Trump family’s business dealings and the transparency of the president’s reelection campaign.

Daffodils bloom as the Supreme Court of the United States is closed to visitors in response to COVID-19. (Flickr/Phil Roeder,; CC BY 2.0,

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On May 12, the Supreme Court will hear oral argument in Trump v. Mazars and Trump v. Deutsche Bank, the consolidated cases concerning whether President Trump’s business and personal financial records are subject to subpoenas from congressional committees. These cases were linked with a third, Trump v. Vance, which concerns whether a New York state grand jury can subpoena the president’s personal financial records and also is scheduled for oral argument on May 12. The outcome of these three cases could have significant implications for congressional power, the Trump family’s business dealings and the transparency of the president’s reelection campaign.

The court is livestreaming the audio of the arguments, under its new policy that governs arguments during the coronavirus pandemic. Argument in Mazars and Deutsche Bank will be divided among attorneys for the congressional committees, attorneys for the president and attorneys from the Justice Department. Argument in Vance will be divided among attorneys for the New York County District Attorney’s Office, attorneys for the president and attorneys from the Justice Department. You can listen here at 10 a.m.

Factual and Procedural Background

In April 2019, the House of Representatives Oversight Committee issued a subpoena to Mazars USA, the accounting firm for Donald Trump and various Trump-related business entities. The subpoena arose out of a committee hearing, during which Trump’s then-personal attorney Michael Cohen had claimed that Trump misrepresented his assets on financial statements prepared by Mazars. The committee subpoenaed eight years of financial information related to the president and his businesses—including information from both before and after he took office. Later that summer, the district attorney for New York County served a subpoena on Mazars on behalf of a grand jury investigating potential crimes under New York law. The subpoena requested various financial documents related to Trump’s personal and business dealings, including his tax returns. The district attorney also served a subpoena on the Trump Organization on behalf of the grand jury, seeking certain financial records and communications, including tax returns. The Trump Organization produced some responsive documents, but the tax returns were not among them.

At the same time that the Oversight Committee issued its subpoena, the House of Representatives Financial Services Committee and the Intelligence Committee issued three subpoenas to Capital One and Deutsche Bank. The Financial Services Committee subpoenaed Capital One for the accounting records of Trump’s business entities, including the records of any principal, parent, subsidiary or affiliate of those entities. The committee asserted that the information sought would inform the committee’s understanding of money laundering and other financial crimes. Both the Financial Services Committee and the Intelligence Committee also issued subpoenas to Deutsche Bank, requesting information from the personal accounts of the president and his family members and the records of several of Trump’s businesses. The Financial Services Committee again pointed to its investigations regarding money laundering and financial crimes, while the Intelligence Committee justified the subpoenas as part of its investigation into foreign interference in U.S. elections and any foreign financial leverage over the president and his family.

President Trump, in his personal capacity, sued Mazars, the chairman of the Oversight Committee, and the committee’s lawyer, alleging that the subpoena lacked statutory authority and sought private records without a legitimate legislative purpose. The committee intervened in place of the individual defendants and agreed to stay the subpoena until the district court ruled. The district court then granted summary judgment in favor of the committee and denied a stay pending appeal. The parties agreed to stay enforcement until the appeals court ruled.

The U.S. Court of Appeals for the D.C. Circuit affirmed the district court’s ruling and found a sufficient constitutional and statutory basis for the subpoena. It subsequently denied rehearing and rehearing en banc. Trump then filed a petition for a writ of certiorari, which the Supreme Court granted.

Trump also sued Capital One and Deutsche Bank, and the Financial Services and Intelligence committees intervened in the litigation. There, the district court denied Trump’s motion for a preliminary injunction, which he subsequently appealed. The parties agreed to stay enforcement of the subpoenas pending the decision of the U.S. Court of Appeals for the Second Circuit. Affirming the district court’s ruling, the Second Circuit held that the subpoenas had legitimate legislative purposes and were not an impermissible exercise of executive power. Trump filed an application for a stay with the Supreme Court, which the high court granted and treated as a writ of certiorari, which it also granted. The Supreme Court then consolidated the case with the Mazars appeal, as both present the question of whether House committees have the constitutional and statutory authority to issue subpoenas for the president’s business and personal financial records.

Mazars, Deutsche Bank and Capital One declined to take a position in the litigation. The briefs before the Supreme Court were filed by attorneys for the committees and Trump’s personal lawyers; the Justice Department filed an amicus brief. On April 27, the Supreme Court requested supplemental briefs addressing whether the political question doctrine or related justiciability principles bear on the court’s adjudication of these cases. All three parties argued in their supplemental briefs that the cases are justiciable.

In response to the grand jury subpoena in the Vance case, Trump sued the district attorney and Mazars in federal district court. The district attorney’s office agreed to temporarily suspend enforcement of the subpoenas. The district court dismissed the president’s complaint, declining to exercise jurisdiction over the suit under Younger v. Harris, which instructs federal courts to abstain from hearing cases to enjoin ongoing state criminal proceedings. The district court also held, in the alternative, that Trump’s claim that the president and his records are immune from state criminal process while he is in office was invalid on the merits. On appeal, the Second Circuit vacated the district court’s application of Younger abstention because the case was brought by a sitting president. However, the Second Circuit affirmed the district court’s determination on the merits, holding that presidential immunity from state criminal process does not extend to the investigative stage, like a grand jury subpoena, particularly where that subpoena was issued to a third party and does not require the president to do anything at all. The court also rejected the Justice Department’s contention that a state prosecutor must make a heightened showing of need when seeking to exercise a state grand jury’s subpoena power in a situation involving a sitting president. Trump appealed, and the Supreme Court granted certiorari. Mazars declined to participate in the case; the Justice Department filed an amicus brief.

Trump v. Mazars and Trump v. Deutsche Bank

Donald Trump’s Brief

In his brief, Trump argues that the committees’ subpoenas are unprecedented and were issued without proper authority. He begins by outlining the absence of historical support for legislative subpoenas for the personal records of sitting presidents, which, he suggests, indicates that something is “amiss.” He then states that Congress’s subpoena power is an implied power, rather than an explicit one, and that implied powers may not be used to alter the structure of government or “otherwise invoke authority that is so fundamental that it would be found in the Constitution if it existed.” Yet permitting subpoenas for a president’s personal records would fundamentally alter the relationship between the legislative and executive branches. Thus, Trump asserts, there is “every reason to doubt” that Congress may rely on its implied powers to issue and defend these subpoenas.

Trump argues that the subpoenas are invalid because they have no legitimate legislative purpose. While the court historically has upheld congressional subpoenas that are reasonably related to particular legislative efforts, Trump suggests these subpoenas do not meet that standard.

Here, Trump suggests, the committees seek to use the subpoenas for a law enforcement purpose: to determine whether the president broke the law or engaged in misconduct. But Congress may not use subpoenas to engage in law enforcement because law enforcement is an executive function. According to Trump, the committees’ clear desire to expose the president’s personal financial dealings is a goal unrelated to legislating and demonstrates the committees' true purpose to punish the president. Trump emphasizes that it is not sufficient for the committees to profess a hypothetical interest in legislating if their primary purpose is actually law enforcement. If Congress could turn a law enforcement purpose into a legislative one, its investigative powers would be limitless.

Trump then asserts that the subpoenas could not be part of a valid effort to enact legislation because they probe into areas in which Congress lacks the power to legislate. First, Congress does not have the power to expand or alter the qualifications of the office of the presidency or otherwise interfere with the president’s ability to exercise his official duties, so the Mazars subpoena could not be part of a justified effort to enact legislation imposing financial-disclosure or conflict-of-interest restrictions on the presidency. Second, for the Deutsche Bank and Capital One subpoenas, the committees claim they are planning to consider general banking and money-laundering legislation, but Trump argues that such a general purpose is insufficient to validate the inquiry into the president’s finances.

Trump adds that the court should require a heightened demonstration of need—beyond the typical legitimate legislative purpose test—because the subpoenas create a conflict between the two branches, raising serious constitutional concerns. He argues that the subpoenas do not meet this heightened standard, as they are at most tangentially related to any legislative purpose.

Regardless, Trump concludes, the court does not need to confront these serious constitutional questions because the committees did not have authority to issue these subpoenas under the rules of the House of Representatives. While the House rules generally authorize committees to issue subpoenas in aid of their legislative functions, Trump argues that courts should require a clear statement of legislative intent to authorize subpoenas that “encumber” the president, or butt up against the outer limits of Congress’s constitutional authority. However, no rule expressly permits the committees to subpoena the president’s private records. Even Resolution 507—which was promulgated to ratify and affirm current and future House investigations and subpoenas related to the president—did not provide the necessary express authorization because it did not purport to enlarge the committees’ jurisdictions or amend the House rules.

The Justice Department’s Amicus Brief

The Justice Department filed an amicus brief in support of President Trump. In the brief, the department argues that the committees must satisfy a heightened showing when they direct subpoenas at a president because Congress’s investigative powers are limited and because the president requires “special solicitude” from Congress and the courts. The committees failed to meet that heightened standard, the department contends.

The Justice Department first suggests that Congress’s implicit investigative powers are limited because they must be used in furtherance of a legitimate legislative purpose; they may not be used as law enforcement or to expose wrongdoing. The department also argues that the full chamber of Congress must authorize a committee to issue a subpoena through a delegation identifying a legislative purpose with “sufficient particularity.” Any information sought through a committee’s subpoenas must be pertinent to that stated legislative purpose.

When a subpoena targets the president, the Justice Department suggests, these limitations on Congress’s investigative powers should be “even stricter” because of the president’s unique position in our government and constitutional structure. According to the department, Article II provides the president with immunity from any process that would “risk impairing the independence of his office or interfering with the performance of its functions.” This immunity can apply even to purely personal conduct or documents if it impairs a president’s ability to exercise his office. Thus, the Justice Department argues, Congress must satisfy a heightened burden when it targets its investigatory powers at a president: The chamber of Congress issuing the subpoena should offer “a clear and specific statement setting forth with particularity the legislative purpose behind any investigation of the president and his information.”

The department adds that this stated legislative purpose should be subject to “heightened scrutiny of its legitimacy”—courts should determine a subpoena’s “real object” in light of the circumstances.

Quoting the D.C. Circuit’s en banc 1974 decision in Senate Select Committee on Presidential Campaign Activities v. Nixon, the Justice Department proposes a third requirement: Congressional subpoenas directed at a president’s information “must be not just reasonably related, but ‘demonstrably critical,’ to the asserted legislative purpose.”

The department notes that though the subpoenas here are technically directed at third parties, it does not matter for the application of these heightened standards. A custodian of records assumes the rights, duties and privileges of his principal (here, the president).

The department then turns to the particularities of the subpoenas at issue in these cases. The Mazars subpoena has an impermissible law enforcement objective; vague language referring to the subpoena’s role in furthering laws and legislative proposals is insufficient to establish a valid purpose. In fact, the Justice Department adds, the committees’ references to possible conflicts of interest and emoluments legislation are improper anyway, given Congress’s limited ability to regulate the president. The department then suggests that the Capital One and Deutsche Bank subpoenas seek information “that is not demonstrably critical to any legitimate legislative purpose.” The department takes issue with the committees’ asserted interests in closing loopholes in money-laundering laws and investigating foreign interference in elections—the subpoenas are identical, though they proclaim to address markedly divergent purposes, the resolution on which the committees rely does not mention foreign interference, and there is “no reason” why an investigation concerning money-laundering reforms should focus on the president. Thus, the subpoenas are invalid.

The Justice Department concludes by suggesting that, in the alternative, the court could invalidate the subpoenas on constitutional avoidance grounds. According to the department, House Resolution 507 grants a blank check for all subpoenas issued directly or indirectly to the president “for any reason whatsoever.” In passing the resolution, the House did not demonstrate “a full awareness of what is at stake,” which should counsel in favor of constitutional avoidance. In addition, the full House never clearly provided a legitimate legislative purpose for each of the subpoenas. So, the department concludes, the court could invalidate the subpoenas on threshold grounds and avoid the constitutional questions raised by this interbranch dispute.

The Committees’ Brief

The committees, filing a joint brief, argue that the subpoenas fall “well within” the constitutional authority of the House of Representatives and do not raise separation of powers concerns. Instead, the committees propose that the president and the Justice Department forward arguments of “extraordinary breadth” concerning the president’s ability to undermine Congress’s legislative and oversight powers.

For context, the committees begin by tracing the history of congressional investigations, emphasizing those investigations that focus on specific individuals, including sitting presidents and their families, and those collecting personal financial information. The subpoenas at issue in these cases, the committees propose, are merely similar efforts to obtain information related to issues on which Congress legislates. The committees then emphasize that the legislative subpoena power is “deeply rooted” in American history and institutions, and even though it is not explicit in the Constitution, the power to investigate is inherent in the power to make law.

The committees suggest that the court’s role in reviewing congressional investigations is limited. For a court to hold that a congressional investigation exceeds Article I, it must be “obvious that there was a usurpation of functions exclusively vested in the other branches.” Courts do not have the authority to strike down a subpoena on the basis of alleged improper motives. The committees concede that Congress may not investigate private individuals when those investigations could result in no valid legislation, but they assert that the subpoenas at issue here are part of ongoing congressional inquiries.

In fact, the committees argue that there are multiple legislative purposes that support these subpoenas. For example, the subpoenas seek documents that will provide information on money-laundering practices and the risks posed by foreign interference in the U.S. political process. Indeed, the committees note, several bills have already been introduced related to these inquiries.

The committees state that the Supreme Court has recognized that Congress may investigate wrongdoing if that investigation relates to a valid legislative purpose. Thus, the committees can investigate potential wrongdoing while remaining consistent with Article I. The committees also suggest that Trump and the Justice Department inaccurately portray Supreme Court precedent when arguing for a “primary purpose” or “real object” test. Instead, the committees argue, the court does not intervene based on alleged improper purposes when a subpoena was issued for a valid reason, as there is here.

Next, the committees address the argument that its subpoenas could not be for a legitimate legislative purpose because laws regulating the president’s finances would be unconstitutional. The committees point to already-existing statutes, such as the Ethics in Government Act, that require the president to file financial disclosures. Through its investigations, the committees are merely considering amending or supplementing existing laws.

The committees then address the Justice Department’s proposed heightened standard. They argue that there are no justifications present in these cases to impose a heightened standard on the subpoenas, particularly given that these subpoenas are not against the president, nor do they require him to do anything at all. The committees emphasize that the Supreme Court has never recognized a privilege or immunity for purely personal conduct or documents. Comparing the cases to Clinton v. Jones, the committees state that if the president can be subject to depositions and document discovery by a private citizen, he could not be immune when it comes to a third party’s production of unofficial records to Congress. Addressing the three components of the Justice Department’s proposed standard in turn, the committees argue that a requirement that the full chamber authorize subpoenas would contravene the power of the House of Representatives to determine the rules of its own proceedings under Article I. Next, the committees argue, judicial scrutiny of the legitimacy of a stated congressional purpose could prompt the courts to overstep their role. Finally, a requirement that the subpoenas be demonstrably critical to a congressional purpose shifts greater power to the executive branch at the expense of Congress.

However, the committees suggest, even if the court adopted the department’s proposed standard, the subpoenas would still be valid: They target nonprivileged financial records, and were sufficiently authorized. The House rules allow each committee to subpoena documents for the purpose of carrying out its functions and duties. And Resolution 507 confirms this power. Constitutional avoidance is not appropriate here, the committees conclude, because there is no ambiguity in the language of the House rules.

Trump’s Reply Brief

In his reply brief, Trump argues that the committees assert an unbounded and unprecedented power to issue subpoenas for a president’s private documents. Trump suggests that the committees’ desire for “broad deference” is particularly inappropriate in cases that raise separation of powers concerns.

Regarding the committees’ arguments about the proper role of the courts, Trump suggests that the committees should have issued these subpoenas directly to the president; if the subsequent accommodations efforts failed, the president could have taken contempt of Congress, and the House could then have pursued any judicial remedies available. By subpoenaing Mazars, Deutsche Bank, and Capital One, the committees “circumvented” the president’s ability to object and ensured that the president would have to file suit.

Trump emphasizes that the subpoenas have no historical precedent, distinguishing the committees’ examples from the facts of the cases before the court. He then mounts a defense of his proposed primary purpose (or real object) test. By inquiring into whether Congress possesses a legitimate purpose, courts assess the available evidence to determine a subpoena’s primary purpose or real object—according to Trump, this inquiry is distinct from an improper effort to inquire into the unstated motives of Congress.

Trump then reiterates that the subpoenas are equivalent to a law enforcement effort and cannot advance legitimate legislative ends. Trump also asserts that there is no clear statement authorizing the subpoenas. He suggests that because both parties agree that Resolution 507 does not alter the scope of the delegation in the House rules, it should not play a role in the court’s decision. The rules themselves, though, use general language and do not expressly authorize the subpoenas here. Trump proposes that constitutional avoidance is particularly appropriate in these cases because the rules are not even constrained by the requirements of bicameralism and presentment; thus, one committee of Congress could create burdensome demands on the president to produce documents. He then concludes: To avoid the serious constitutional questions raised, the court should find the subpoenas without sufficient express authorization.


After a request from the court, the parties filed supplemental briefs addressing whether the political question doctrine or related justiciability principles bear on the court’s adjudication of these cases.

Trump’s Supplemental Brief

In his supplemental brief, Trump states that the cases are justiciable.

Trump asserts that he has Article III standing because the disclosure of his private records is a tangible injury that is traceable to the committees’ subpoenas and that could be redressed by a ruling of the court. Even though the president is not the direct recipient of these subpoenas, he still has standing to challenge their validity.

Trump then emphasizes that no party raised the political question doctrine in the lower court litigation “for good reason”: The doctrine does not apply here. First, Trump suggests that the Supreme Court has never considered a dispute over the scope of Congress’s legislative power to be textually committed to Congress under Article I. Whether a subpoena has a legitimate legislative purpose is equally subject to judicial review as formal legislation is.

Second, Trump argues that courts could employ manageable standards to resolve every element of this dispute: whether history and tradition support the subpoenas, whether the committees have impermissibly exercised executive power, whether the subpoenas could lead to valid legislation, whether the committees have a heightened need for the records, and whether the committees had statutory authority to issue the subpoenas. Finding a political question in these cases, Trump asserts, would mean that no person—including ordinary private individuals—could challenge congressional subpoenas in court.

Trump then argues that deciding the merits of these cases would not show a lack of respect for the political branches; resolution of whether Congress has exceeded its Article I authority is a traditional role accorded to the courts. Trump emphasizes that the court here does not need to decide if the subpoenas themselves make for good public policy. Even though the cases have political overtones, courts may not decline to resolve a dispute merely because there is a disagreement on policy preferences between the political branches. Judicial review, Trump states, is his only recourse.

Trump concludes by clarifying that even though the political question doctrine is inapplicable, the subpoenas can still raise serious separation of powers concerns.

The Justice Department’s Supplemental Brief

The Justice Department filed a supplemental brief arguing that the cases are justiciable.

The department recognizes that interbranch informational suits are not traditionally thought of to be capable of resolution through the judicial process. But the department distinguishes the cases before the court from nonjusticiable cases in which the branches seek to vindicate institutional injuries that do not support Article III standing. The department states that, if the committees had issued the subpoenas directly to the president and he had refused to comply on the basis that they exceeded Article I powers in light of his Article II prerogatives, the committees would not have had standing to enforce those subpoenas in federal court. Here, however, the committees have targeted third parties, who have indicated that they intend to comply with the subpoenas; that threatened disclosure creates a personal and concrete injury that supports Article III standing. Plaintiffs that seek to vindicate personal interests, even those that flow from public office, suffer sufficient injuries in fact, even if their claims implicate interbranch disputes.

Pointing to cases like United States v. Nixon, the Justice Department suggests that there is a long history of the court resolving similar disputes over the validity of subpoenas. Just as in those cases, the political question doctrine does not apply here because these cases present a straightforward legal question, not a policy or value judgment. The department outlines how none of the factors prompting the application of the political question doctrine are present in these cases. For example, the cases can be resolved with judicially manageable standards, such as whether the subpoenas had a legitimate legislative purpose. The department then distinguishes the cases from the three cases in which the Supreme Court has found a political question in the past 50 years.

The Justice Department concludes by arguing that no other justiciability principle precludes the court from resolving these cases. The dispute is ripe and is not moot. Finally, prudential concerns weigh in favor of resolving the case because the absence of judicial review would give Congress “free reign” to issue subpoenas without meaningful checks.

The Committees’ Supplemental Brief

In their supplemental brief, the committees also argued that the cases are justiciable and emphasized that no party has questioned the ability of the federal courts to resolve them.

The committees emphasize that President Trump filed the cases solely in his capacity as a private citizen and that four lower courts applied judicially manageable rules to resolve the challenges to the congressional subpoenas.

The committees argue that these cases do not share key features with cases presenting nonjusticiable political questions. First, the cases here ask the Supreme Court to rule on congressional committees’ authority to issue subpoenas, a question which the court has resolved before. Second, the applicable case law creates clear rules for the court to apply in resolving the case. Third, the cases raise legal questions, not policy determinations. Fourth, the court would not disrespect the executive branch by resolving this lawsuit—indeed, the president himself brought the lawsuit. However, the committees note, the petitioners’ proposed primary purpose test evinces a lack of respect for the coordinate branches of government, even though it does not go to justiciability. Fifth, although a court may not rule on the wisdom of a congressional approach or methodology, it may examine Congress’s authority to issue subpoenas. Finally, “no potentiality of embarrassment from multifarious pronouncements by various departments on one question” would result if the court decided the question. The committees note that the implied nature of Congress’s subpoena power does not mean that it is inappropriate for the courts to rule on the scope of that power.

Prudential concerns also counsel in favor of judicial resolution of these cases. The committees need to be able to enforce their subpoenas. This litigation has already delayed their ability to do so. Thus, it is in the committees’ interest for the courts to reach the merits now. And, the committees suggest, it is also in the interest of the executive branch and of third-party subpoena recipients for the court to reach the merits. Without a resolution of this dispute, recipients would need to choose between ignoring the subpoena and risking contempt of Congress or complying with a subpoena and risking liability if the subpoena is invalid or unenforceable.

Finally, the committees conclude by suggesting that, if the court has concerns about reaching the merits, it could dismiss the writs as improvidently granted and leave in place the judgments of the courts of appeals.

Trump v. Vance

Donald Trump’s Brief

In his brief, Trump argues that the district attorney’s unprecedented effort to subject the president to criminal process is contrary to Article II and the supremacy clause. Trump suggests that if state prosecutors across the country could target him, he would be unable to effectively discharge the constitutional duties of his office. Impeachment, he says, is the sole process by which a sitting president may be prosecuted for wrongdoing. He frames the grand jury subpoena as part of a broader effort of the president’s opponents to obtain his tax returns and financial records for political purposes.

Trump states that the president is “absolutely immune” from criminal process while in office under the Constitution. Comparing the burdens placed on the president by an investigation to those placed by an indictment, Trump states that a prosecutor “crosses the constitutional line” when he initiates compulsory criminal process on the president as part of a grand jury proceeding that targets the president. Otherwise, the president would be distracted from his constitutional duties and his ability to effectively represent the United States would be undermined.

According to Trump, this grand jury subpoena undoubtedly targets the president himself: It names him and seeks his private records. And the district attorney has confirmed that the grand jury is investigating the president; it may eventually charge him with a crime. Thus, it is irrelevant that the subpoena was technically sent to Mazars, and not Trump. Rather, the court should treat the subpoena as if it was sent directly to the president. Trump adds that immunity does not turn on who is responsible for physically compiling and transmitting the responsive materials. For immunity purposes, Trump suggests, what matters is the “cumulative effect” of permitting all state and local prosecutors to criminally investigate the president. And it is clear that a president “besieged with criminal process from hostile local jurisdictions could not effectively serve the national interest.”

Trump argues that the Constitution’s guarantee of presidential immunity applies with “special force” in this case because it involves a state criminal process. Under the supremacy clause, state and local officials are prohibited from defeating the legitimate operations of the national government, and state prosecutors could use subpoenas to harass the president, hindering his performance of the duties of his office.

He suggests that the Supreme Court’s precedent does not undermine—but rather supports—presidential immunity in this context. Trump argues that the case for immunity from state criminal process is stronger than for civil litigation for unofficial acts, like in Clinton, or a third-party trial subpoena, like in United States v. Nixon. Indeed, Clinton v. Jones, the Supreme Court reserved the question of whether immunity extends to state criminal process, noting the supremacy clause concerns raised by state judicial processes over the president. Trump then states that United States v. Nixon provides an independent basis for invalidating the grand jury subpoena because it required a “demonstrated, specific need” for materials sought in a subpoena directed at the president—a showing that the district attorney did not and could not make here.

The Justice Department’s Amicus Brief

The Justice Department begins its brief by outlining the president’s unique position in the constitutional scheme, particularly with regard to the office’s independence from the states. Under Article II, the Justice Department says, the president has immunity from “any process that would risk impairing the independence of his office or interfering with the performance of its functions.”

The Justice Department suggests that under Article II and the Supremacy Clause, the president’s immunity from state judicial process is even broader than the immunity from federal judicial process recognized in the Supreme Court’s precedent. State grand jury subpoenas, the Justice Department says, could divert the president’s time and energy away from the duties of his office. They also could allow state prosecutors to harass presidents because of disagreements with his official policies. Given that local prosecutors represent local electorates and are not subject to the supervision of the attorney general, these subpoenas present serious risks for the proper functioning of the executive branch.

The Justice Department also emphasizes the lack of historical precedent for this type of subpoena. It proposes that the lack of precedent underscores the constitutional concerns present in the case.

Even where a state grand jury subpoena seeks records from a third-party custodian, the Justice Department says, they still raise constitutional concerns. A third-party custodian assumes the rights, duties and privileges of his principal—here, the president. And acts taken against the president in his private capacity can still burden his ability to exercise the duties of his office. For example, the department proposes, a subpoena could be used to harass the president in response to his official policies or divert his time and attention away from his presidential duties.

The Justice Department then suggests that, based on United States v. Nixon, the court should at the minimum require a heightened showing of need to state grand jury subpoenas for a president’s personal records. This heightened standard is necessary to mitigate against the risks described above. Here, the Justice Department says, the district attorney has not made that showing. Instead, he essentially copied the text of the subpoena issued to Mazars by the House of Representatives Committee on Oversight and Reform. Thus, the Justice Department concludes, the subpoena is impermissible.

District Attorney Cyrus Vance’s Brief

In his brief, Vance argues that the president has no categorical immunity from a state grand jury subpoena for documents unrelated to his official duties. Though a president does have immunity from some judicial processes under Article II, Vance says, that immunity extends only to official acts. In addition, the Supremacy Clause does not create immunity for private conduct; it merely prohibits states from interfering with a president’s official acts.

Vance suggests that a risk of interference with a president’s official duties is not sufficient to provide blanket immunity against subpoenas for private documents. As history and Supreme Court precedent show, presidents have been subject to judicial processes while in office in some circumstances. For example, Vance states, in Clinton v. Jones, the Supreme Court concluded that categorical immunity is not appropriate. And in United States v. Nixon, the court required the president to disclose conversations that implicated official conduct.

Because the subpoena at issue in this case implicates only private, unofficial documents, the president cannot assert absolute immunity. Instead, he would have to make a case-specific showing of an impermissible Article II burden. Here, though, the president has only asserted a mere potential for interference in his official duties. Thus, Vance concludes, categorical immunity is not appropriate here.

Vance then turns to the specific arguments forwarded by Trump and the Justice Department. He says that even if a sitting president is immune from indictment, that does not mean that he is immune from investigation. This is because a subpoena is far less burdensome than either indictment or prosecution; it does not impose the same stigma that a public accusation of wrongdoing does. Vance again references Supreme Court precedent, proposing that the court has previously upheld greater impositions on the president.

Vance then responds to the assertion that state prosecutors specifically warrant an application of absolute immunity. State prosecutions receive a presumption of regularity, and criminal justice is a key area of state concern. Vance states that federal interference with state criminal proceedings is thus particularly inappropriate. Indeed, he adds, structural constraints such as jurisdictional limitations, ethical rules, and a prohibition of state investigation of official presidential conduct ensure that state prosecutors act responsibly.

Distinguishing between Trump’s arguments and the Justice Department’s arguments, Vance states that the solicitor general does not explicitly adopt a theory of absolute immunity. Instead, Vance says, the Justice Department argues that a state prosecutor must make a showing of heightened need, demonstrating that the evidence sought is unavailable from any other source. But, Vance argues, courts have applied that standard in response to claims of executive privilege, not where the subpoenas target nonprivileged documents that do not implicate official conduct. And the mere risk of burdens on official duties is not sufficient to justify such a heightened standard. Vance proposes that the regular procedures for challenging a subpoena, either because of harassment or because of a burden, are sufficient to protect the president’s interests. A president could present case-specific claims of actual burdens or bad-faith efforts from investigators, which are “reviewed with all the sensitivity and respect due a Chief Executive.”

Vance then addresses the harmful consequences of Trump and the Justice Department’s arguments. For example, he says, immunizing a president from investigation while in office could lead to a loss of vital evidence, essentially providing immunity from indictment or prosecution even after he has left office. It also could have the effect of completely immunizing third parties. Indeed, Vance adds, the inability to investigate these other parties while the president is in office might even prevent them from being exonerated. Addressing the proposal for a heightened-need standard, Vance says that such a standard would “unduly hamper” the state’s authority to enforce criminal laws and would essentially create absolute immunity.

Vance concludes: Although a president could theoretically demonstrate that a particular subpoena is overly burdensome or issued in bad faith, he has not done so here. Indeed, the burdens here are minimal—and the subpoena is less burdensome than the process approved of in Clinton and Nixon. It merely seeks personal documents; it does not require the president to appear or testify. And the documents sought will be given to a secret grand jury proceeding, not aired at a public trial. In addition, the information sought is less sensitive than in Nixon: It is merely financial information, not records concerning presidential functions. Finally, the subpoena is not directed to the president but, rather, to his accountants, and it does not require the president himself to do anything. Trump has not made a showing that the subpoena was issued in bad faith or with the intent to harass. Thus, this subpoena is valid.

Donald Trump’s Reply Brief

In his reply brief, Trump argues that Vance’s brief turns on whether this subpoena interferes with the president’s official duties, but that framework is incorrect. According to Trump, the court should look to the cumulative effects of this category of process (state criminal investigations), which could impair the president’s ability to execute the responsibilities of his office and would divert his time and energy away from those responsibilities. The risk of these burdens is sufficient under the Constitution for the subpoena to be invalid.

Responding to Vance’s criticism of relying only on the risk of a burden on the presidency, Trump states that the Supreme Court has always reached a judgment on whether there is a burden by “forecasting” what would happen if immunity were denied in that category of cases. The appropriate inquiry, according to Trump, is not about the burden of this specific dispute if it were allowed to go forward.

Trump continues on to reject Vance’s proposal for a case-specific approach. He states that the president could never be granted immunity under that approach because no one subpoena alone would present a sufficient burden—even if many state prosecutors issued similar subpoenas to the president at once, Vance’s inquiry would require a court to assess the burden of each subpoena on its own.

Applying his preferred framework, Trump then emphasizes that this category of process—state criminal investigations—interferes with the president’s official duties. Here, Trump states, he is a subject of the investigation and the grand jury seeks to investigate his private conduct. In addition, the limitations Vance outlines on state investigations are insufficient: State prosecutors place greater emphasis on state interests, the state court system is oriented toward allowing grand juries to function without hindrance, jurisdictional limitations do not seem to constrain the scope of subpoenas themselves, secrecy is not an absolute rule, and this type of subpoena is unprecedented.

United States v. Nixon and Clinton v. Jones, Trump says, do not undermine immunity in this context. Both Nixon and Clinton involved federal process under the supervision of the federal courts, and this case suggests even more significant distractions and stigmatic harms. The Supreme Court has previously employed a balancing approach for whether immunity is appropriate, but that balancing approach is appropriate only in the federal system; when it comes to state process, the Supremacy Clause mandates immunity. However, Trump says, even if balancing is appropriate, it weighs in favor of immunity. The fact that this subpoena targets unofficial conduct is not dispositive; it still involves a state process, arising from a criminal proceeding that targets the president for an indictment––each of these factors indicates that immunity is appropriate.

Trump states that, at a minimum, the district attorney must demonstrate that he has a heightened need for these records. Trump proposes that the only way to assess whether a subpoena is too burdensome or issued in bad faith, as Vance says is appropriate, is to inquire into whether the grand jury has a need for the records. But Vance has not demonstrated that he has a heightened need, and thus the subpoena is not valid.

Trump argues that even if the court chooses to adopt a case-specific approach, it should still apply the heightened-need standard to the specifics of this case, which the district attorney cannot meet. Trump then concludes, saying that the court should “under no circumstances” adopt a case-specific approach without giving him the ability to develop a factual record. Before a final judgment can be entered, there should be evidence presented on heightened need, bad faith and interference with official duties.

Charlotte Butash is a graduate of Harvard Law School, where she was a Lawfare student contributor. She holds a B.A. in Political Science and International Studies from Johns Hopkins University.

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