Trump v. Vance
As part of its ongoing investigation into possible campaign finance violations and other possible illegal conduct involving the President, his associates, and his businesses, a New York grand jury served Mazars USA, LLP with a subpoena for certain financial records, including the President’s tax returns. In September 2019, President Trump filed a complaint challenging the Mazars subpoena, arguing that presidential immunity should preclude Mazars from complying with it. A federal district court in Manhattan dismissed the lawsuit, holding that presidential immunity does not preclude a third party from complying with a grand jury subpoena for personal, non-privileged financial records of the President merely because the grand jury’s investigation pertains to the President. The case was appealed to the Second Circuit, which agreed that any presidential immunity from criminal process cannot prevent the enforcement of the subpoena against a third-party accounting firm like Mazars. President Trump filed a petition for a writ of certiorari, which the Supreme Court granted in December 2019.
On March 4, CAC filed an amici curiae brief on behalf of former Department of Justice officials in support of the respondents. Our brief responds to the President’s claim that it “has been the consistent position of the Justice Department for nearly 50 years” that the President cannot “be subjected to criminal process” until “he leaves office” and explains why that contention is demonstrably false. First, our brief explains that under the Department’s standard, any attempt to subject the President to judicial process must balance the importance of that process with the effect it might have on the President’s ability to fulfill his constitutional functions. Applying that standard, the Department has at most taken the position that the President is immune from indictment and criminal prosecution. The Department has never taken the position that presidential immunity prevents a third-party from complying with a grand jury subpoena. Rather, the relevant DOJ memoranda and briefs repeatedly explain that the President can be subject to judicial subpoenas while in office, and specifically contemplate that grand juries may continue to investigate the President while he remains in office.
Second, applying the balancing standard that the Department applies to the amenability of the President to judicial process, the brief argues that presidential immunity cannot preclude the third-party accounting firm from complying with the grand jury subpoena at issue in this case. The President does not need to do anything in response to the subpoena, because the subpoena is targeted at Mazars, and the stigma of a subpoena for the President’s tax records from a third party is far less than the stigma of indictment (or even of being named an unindicted co-conspirator, something the Department has approved with regard to the President). For those reasons, if the Court applies the standard the Department has consistently applied in analyzing questions of this type, it should permit Mazars to comply with the subpoena.
March 4, 2020
CAC files amici curiae briefU.S. Sup. Ct. Amicus Brief
March 16, 2020
The Supreme Court has postponed arguments originally scheduled for March 31 due to CV-19