Rule of Law

OP-ED: There’s No Way for the Supreme Court to Escape Clinton v. Jones in Trump v. Vance

On Tuesday, the Supreme Court heard argument in two major cases concerning subpoenas for President Donald Trump’s financial records. One of those cases, Trump v. Vance, concerns a New York district attorney’s subpoena for Trump’s tax returns and other financial documents from his accounting firm Mazars as part of a grand jury investigation of possible falsifying of state business records surrounding potential federal campaign finance violations. Trump has argued that the subpoena is unlawful because, in his view, the president enjoys an absolute immunity from criminal process that sweeps so far that it precludes a pre-indictment grand jury subpoena directed at a third-party simply because the underlying investigation pertains to the president. If the Supreme Court adopts that theory, it would be a dramatic expansion in the narrow immunity previously afforded other presidents, threatening to give not only this president—but also all future presidents—the protections of a king.

Tuesday’s oral arguments, however, seemed to indicate that the theory of presidential immunity espoused by the president’s lawyers may not have swayed the justices because it is difficult to square with the Supreme Court’s prior ruling in Clinton v. Jones, which the court decided unanimously in 1997. That case concerned a civil suit by a private citizen concerning possible sexual misconduct by President Bill Clinton. In that case, Clinton challenged the subpoena for his testimony and any subsequent civil trial under the theory that “the Constitution affords the president temporary immunity from civil damages litigation arising out of events that occurred before he took office.” The court unanimously rejected this theory and permitted that lawsuit to go forward. As multiple justices noted during the oral argument on Tuesday, the outcome of that case seriously undermines Trump’s arguments in Vance.

One argument that Trump’s lawyers have made in favor of his immunity is that the subpoenas at issue in this case could distract the president and prevent him from fulfilling his constitutional functions as president. Comparing this case to the Jones case, however, it is clear that the distraction that the president faced there was far greater than the potential distraction here. For one thing, as Justice Neil Gorsuch noted, the subpoena in Jones required the president to sit for a deposition while he was in office, whereas the subpoenas here aren’t even directed at the president, but at third parties. Indeed, the president is not required to do anything. Yet the Jones court held that even a presidential deposition was permissible, reasoning that “[t]he fact that a federal court’s exercise of its traditional Article III jurisdiction may significantly burden the time and attention of the Chief Executive is not sufficient to establish a violation of the Constitution.” Moreover, as Chief Justice John Roberts noted, Mazars’ compliance with the subpoena will not require the same energy and attention—if it requires any attention of the president at all—as would defending oneself in a civil trial, something the court also approved in Jones.

The president’s lawyers have also argued that the stigma associated with being subject to a criminal grand jury subpoena is too great a burden on the president. However, as counsel for New York argued on Tuesday, it is difficult to argue that the stigma of complying with a grand jury subpoena—New York law, like most states, keeps grand jury materials secret unless introduced as evidence in a criminal proceeding—is greater than the stigma of being faced with a civil suit and potential trial for sexual misconduct, as Clinton faced in Jones. Notably, this case also presents far less stigma than a president being named an unindicted co-conspirator, something that the Watergate special prosecutor’s office argued was permissible back in 1974.

Additionally, Trump’s lawyers repeatedly argued that a ruling permitting the New York subpoena to go forward would allow district attorneys across the country to issue subpoenas directed at the president, potentially in an effort to harass him. The objection was also made in the Jones case that millions of citizens could file harassing civil lawsuits against the president, yet the court was not convinced that this fear should prevent the case from going forward. As the court said, “[i]f the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.” It is also noteworthy that since the Jones case was decided, there has not been a flood of civil litigation targeting sitting presidents.

Furthermore, responding to Justice Ruth Bader Ginsburg’s question on this subject, the New York district attorney’s office’s lawyer made the point that although there may be hundreds of district attorneys in the United States, most of them will not have jurisdiction over most of the president’s conduct before he took office. In fact, New York is uniquely situated in this case because the campaign finance violations—to which Trump’s former attorney Michael Cohen has pleaded guilty—that undergird the Vance subpoena requests took place in New York. There is therefore little fear that every district attorney in the country could issue subpoenas to the president if the Vance subpoena is approved by the court.

Trump’s lawyers also made the case that upholding these subpoenas would place the president at the mercy of local and state prosecutors, who are accountable to their voters. But in the same way that Clinton filed suit in Clinton v. Jones, New York’s lawyer argued that a sitting president could always file suit in federal court challenging a state or local subpoena or other judicial process as unduly burdensome, and a federal judge with a lifetime appointment would decide the legality of that process. At bottom, then, a president would be protected by federal judges from truly bad-faith subpoenas that impede his ability to do his job. As the court in Clinton v. Jones reasoned, “we have confidence in the ability of our federal judges to deal with [this] concern.”

Finally, while the president’s lawyers suggested that the subpoena could be delayed until after the president leaves office, New York’s lawyer emphasized that such a delay could prevent the state from bringing charges because of state statutes of limitations, and it could otherwise make it more difficult to prosecute crimes that pertain to the president. This was the same concern the court acknowledged in Jones when it refused to delay that case, reasoning that “delaying trial would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.”

In short, if the court applies its own precedent from Clinton v. Jones to the Vance case, it is clear that the president’s arguments should not carry the day. Multiple justices appointed by presidents of both parties seemed to understand that.

Despite the weight of the Jones precedent, it remains difficult to tell whether the court will side with Trump, giving him almost limitless authority to avoid lawful subpoenas, or with the New York district attorney, who is simply seeking to do his job of investigating criminal wrongdoing. It appeared at least on Tuesday, though, that multiple justices understood the potential disastrous consequences of a ruling in Trump’s favor, both with regard to the court’s prior precedents and to the rule of law itself.