The Supreme Court Thursday handed down two defeats for President Trump’s assertions of invulnerability to legal process. Both are victories for the rule of law in principle, although in practice they may not lead to much accountability for this president — not anytime soon, anyway.
The two cases, Trump v. Vance and Trump v. Mazars USA, involved subpoenas for Trump’s financial records sent by the Manhattan district attorney and, separately, by Congress to an accounting firm and a bank. As gratifying as the decisions were from a Trump-is-not-above-the-law perspective, from a practical standpoint, the careful on the one hand/on the other hand tests established by Chief Justice John Roberts’ majority opinions buy Trump more time to continue his pattern of secrecy and obstruction.
Too often in the age of Trump, the slow pace of our court system has shielded the president from the sort of legal accountability that any other citizen would have long since faced. Trump’s lawyers have demonstrated a singular skill at throwing up every legal obstacle they could think of to try to run down the clock. Thursday’s rulings won’t stop them.
In Vance, the Supreme Court gave the go ahead for a Manhattan grand jury to obtain the material, though not without a relatively standard-issue pause for more inquiry before a lower court first. But that court is given the mandate to offer “[t]he high respect that is owed to the office of the Chief Executive . . . including [in] the timing and scope of discovery.”
Thus, the Vance investigation proceeds to a grand jury, where it will be swathed in secrecy. No one even knows if Trump is personally a target, but he could be in serious legal jeopardy and face profound consequences. Still, given the usual pace of investigations of complex financial crimes, it could be quite some time before the public knows more.
Congress, on the other hand, got a blinking yellow light in Mazars. Maybe it will get the documents. Maybe it won’t. In order to, it will have to navigate five new traffic rules from the Court: establish that it has a real necessity for the documents, prove that the request is narrow in scope, fully document its purpose, demonstrate that the subpoena will not unduly burden the president, and then consider “other factors” that might arise. (Most reporting on the test has focused on the first four factors and avoided the portentous, further litigation-bait “other factors.”)
Respectfully, Congress cleared these hurdles before the case came to the courts. The record is littered with years’ worth of hearings, document requests, reports, and letters exploring the question of Trump’s conflicts of interest, compliance with the Constitution’s Emoluments Clauses, and possible exposure to Russian influence operations. All of these clearly set up the many ways the material requested could answer questions from Congress and the public.
Yet the decision treats Congress like an unruly child who needs a parent looking over his shoulder while he does his overdue homework — while making sure he doesn’t dull the tip on his big brother’s pencil. (Hint: the big brother is the president, and while Congress is doing its new supervised homework, he’s tossing empty beer cans out the window as he speeds down the highway in the car he boosted from the neighbors).
As a result, Congress probably will take a long time to navigate the new traffic rules at the district court and then will have to work its way through an inevitable circuit court appeal. Don’t count on the subpoenaing House committees to see anything before the election. Then to make the timing even more complicated, the subpoenas expire when a new Congress is seated early next year.
In the long run, the day’s rulings did clear out some legal underbrush, sweeping aside most of the outlandish and absolutist legal immunity claims made by Trump. The Vance case, after all, featured the president’s personal lawyer arguing in federal appeals court that Trump could indeed shoot someone in the middle of Fifth Avenue and not be investigated while still in office. So, now we can take that farcical argument off the table.
We can also bin the ferociously wrongheaded argument the president’s lawyers made that Congress’s subpoena power is without constitutional basis or, in the alternative, that any information it seeks must be “demonstrably critical” for it to carry out a legislative purpose.
In a historic battle between coequal branches of government, Congress came out with a formidable tool for oversight. The newly articulated standards in Mazars can be met, now and in the future. In the long run, the Court’s affirmation of lawmakers’ power and creation of a roadmap for obtaining judicial approval of its subpoenas may even help. But inasmuch as the point of the cases was to empower Congress to serve as a practical, fast-moving check against Trump, the fight goes on.
The views expressed are the author’s own and not necessarily those of the Brennan Center.