By Aryana Swanson
In July 2020, the U.S. Supreme Court held that no categorical immunity or “heightened standard” bars state prosecutors states from issuing a “state criminal subpoena to a sitting President” (591 U. S. __ (2020)).
President Trump and his affiliated businesses had been subpoenaed for their financial recorrds by the District Attorney of New York County. President Trump then sued the District Attorney and Mazars to stop the enforcement of the subpoena. Citing Article II of the Constitution and the Supremacy Clause, Trump’s attorneys said that, as a sitting President, he should be granted absolute immunity from state criminal procedures.
The U.S. Court of Appeals for the Second Circuit affirmed the District Court’s alternative decision, finding that any presidential immunity from state criminal process does not extend to investigative steps like the grand jury subpoena. However, it also found that the Supreme Court precedent the lower court had used did not apply in this case and vacated the judgement as to that issue.
In Trump v. Vance, all nine justices agreed that a President does not have absolute immunity from the issuance of state criminal subpoena and the case should be remanded to the District Court. A seven-Justice majority voted to affirm the decision of the Second Circuit. The majority opinion was issued by Chief Justice John Roberts.
The opinion states, “This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President” (591 U. S. __ (2020)). Since the case was the first of its kind, the Court looked to precedent regarding federal criminal subpoenas. In Clinton v. Jones, 520 U.S. 681 (1997), the Court had found that federal criminal subpoenas do not impede the President’s Article II responsibilities enough to be constitutionally barred. In Trump v. Vance, the Court found that state criminal subpoenas are neither a unique nor a greater threat than federal subpoenas.
The majority wrote, “A state grand jury subpoena seeking a President’s private papers need not satisfy a heightened need standard, for three reasons. First, although a President cannot be treated as an ‘ordinary individual’ when executive communications are sought, [United States v.] Burr teaches that, with regard to private papers, a President stands in ‘nearly the same situation with any other individual.’ 25 F. Cas., at 191–192. Second, there has been no showing here that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions. Finally, absent a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence.” Additionally, “the President has multiple avenues to challenge the subpoena under state law if it is issued in bad faith or is unduly broad.” (591 U. S. __ (2020)).
Justice Brett Kavanaugh, joined by Justice Neil Gorsuch, concurred in the judgement, adding that he would use United States v. Nixon, 418 U.S. 683 (1974) to balance both the State’s interests and the Article II interests. The standard outlined there “requires that a prosecutor establish a ‘demonstrated, specific need’ for the President’s information” (591 U. S. __ (2020)).
Justice Clarence Thomas issued a dissenting opinion. He agreed that the President does not have absolute immunity from the issuance of the subpoena, but said he would vacate and remand because the issuance of the subpoena and the enforcement of it are two distinct issues. Citing language from the Burr decision, Thomas wrote that the District Court could choose to enjoin the subpoena if it interferes with the President “because of his official duties.”
Justice Samuel Alito also dissented, writing, “Never before has a local prosecutor subpoenaed the records of a sitting President. The Court’s decision threatens to impair the functioning of the Presidency and provides no real protection against the use of the subpoena power by the Nation’s 2,300+ local prosecutors” (591 U. S. __ (2020)).