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 responded 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 explained why that contention was demonstrably false.  First, our brief explained 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 had at most taken the position that the President is immune from indictment and criminal prosecution.  The Department had 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 argued 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).

The Supreme Court rejected President Trump’s argument that the President is absolutely immune from complying with subpoenas in criminal investigations.  The Court held that any burden or stigma incurred by the President is not enough to provide him a blanket exemption from all criminal subpoenas.  Furthermore, the Court rejected the Trump Administration’s argument that the issuance of subpoenas for the President’s personal records must meet the heightened standard reserved for official documents that might be subject to executive privilege.  This decision is an important affirmation that the President of the United States is not above the law and is subject to criminal process like every other citizen.