Don't count Trump out going into 2020 U.S. election: Anthony Scaramucci
If you’re the president of the United States, you don’t stand above the law. But if you’re a member of Congress seeking the president’s personal records in order to exercise oversight of the executive branch, you better not overreach.
That, essentially, is how the Supreme Court ruled in a pair of opinions released Thursday morning. Both cases, Trump v. Vance and Trump v. Mazars, involved efforts to gain access to President Donald Trump’s tax returns, bank documents and bookkeeping records. Trump’s lawyers and the Justice Department contended that the president didn’t have to comply with the subpoenas — and could block his financial advisers from complying — because the requests were overly intrusive and undermined the sweeping immunity from criminal investigations any president should enjoy while in office.
The Court’s ruling 7-2 ruling in Trump v. Vance is a seminal and landmark rebuke of this imperial view of executive authority.
Manhattan District Attorney Cyrus Vance Jr. is conducting a probe into the Trump Organization’s efforts to mask hush money paid to two women who said they had sexual encounters with Trump. The D.A. wants to explore whether, as part of those maneuvers, Trump’s team falsified business records. Trump’s lawyers argued that prosecutors like Vance should have to meet a heightened standard when seeking any president’s personal papers. Chief Justice John Roberts, writing for the majority, disagreed, citing previous rulings involving former presidents Richard Nixon and Bill Clinton.
Trump’s argument “runs up against the 200 years of precedent establishing that Presidents, and their official communications, are subject to judicial process,” Roberts, an institutionalist devoted to the power of legal precedent, wrote. He dismissed the idea that Vance’s subpoenas stigmatized Trump, undermined his leadership, or amounted to unnecessary “harassment” (or “PRESIDENTIAL HARASSMENT!” as Trump has described it in tweets).
In short, Roberts wrote, adopting the language from an 1807 Supreme Court ruling involving Aaron Burr and President Thomas Jefferson, every president’s legal standing is in “nearly the same situation with any other individual.”
Bravo. This opinion will echo well beyond Trump’s presidency. It is a victory for the rule of the law at a time when it has been under withering attack, in words and actions, from the executive branch.
In the other case, Trump v. Mazars, the president won a short-term victory. Three committees in the House of Representatives wanted access to Trump’s tax returns and other financial records (including from his accounting firm, Mazars USA) in order to craft legislation modernizing federal ethics and disclosure laws and to protect the 2020 election from foreign interference. Trump’s wealth, possible campaign finance violations, and his ongoing business activities while in office have laid bare the limits of federal conflict-of-interest guidelines, and his 2016 presidential campaign’s cooperation with Russians spurred Special Counsel Robert Mueller’s investigation of possible crimes. Both issues informed Congress’s push for Trump’s records.
Inevitably, that led to a healthy debate about separation of powers and how far Congress can act to exercise its constitutional duty to monitor the executive branch. Legal precedent, springing from an 1880 case, Kilbourn v. Thompson, has held that Congress needs to demonstrate a “legitimate need” for any request it makes of the president, one that should be related to legislative actions.
During oral arguments in the Mazars case in May, questions and hesitations about congressional overreach crossed ideological lines among the Supreme Court justices. Again and again, they considered the limits of Congress’s authority to investigate any president. Sure enough, in the 7-2 ruling Thursday remanding the Mazars case back to lower courts for reconsideration, Roberts wrote that those courts “did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information.”
“The House’s approach would leave essentially no limits on the congressional power to subpoena the President’s personal records,” Roberts noted. “A limitless subpoena power could transform the established practice of the political branches and allow Congress to aggrandize itself at the President’s expense.”
Roberts said that jockeying for records of the kind Congress seeks from Trump has historically been resolved “by the political branches through negotiation and compromise without involving this Court.” In other words, figure it out yourselves and leave the courts out of it. This prescription might work in a negotiation involving rational actors but is unlikely to hold in political brawls.
Roberts opened another door to Congress, however, noting that executive privilege plays an important role in safeguarding presidential decision-making but that “protection should not be transplanted root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations.” The president, Roberts asserted, does not have blanket immunity from records requests.
For Trump, the Mazars opinion is meaningful in a very practical way: It makes it unlikely that any of his financial records will become public prior to the presidential election in November. And while the records will have to be released to Vance, the court sent the case back to the district court to sort through how that will work in practice, and Vance’s office is unlikely to leak them to anyone. Had Mazars enabled Congress to get the records, you can bet that they would have become public posthaste.
Whatever route the Mazars case takes from this point, the federal government and Congress need to clarify what kind of transparency and disclosure we should expect from future presidents.
The Constitution makes it clear that presidents can’t use the most powerful office in the land to line their wallets. Articles I and II forbid them from accepting bribes from foreign or domestic sources. That ban in and of itself requires presidents to be transparent about their finances and circumspect about their business dealings. While federal conflict-of-interest laws dating from the Civil War era and updated in 1978 in the wake of the Watergate scandal also require presidents to disclose assets and business interests — and to have potential conflicts monitored by a federal ethics watchdog — much of the disclosure remains voluntary.
Presidents remain exempt from federal conflict-of-interest statutes, so practices like placing assets in a blind trust (which Lyndon B. Johnson, Jimmy Carter, Ronald Reagan, both of the George Bushes and Bill Clinton did) or releasing personal income tax returns (which every president since Carter has done) is essentially voluntary. Financial transparency in the White House is a tradition but not a requirement.
Trump is the most financially conflicted president of the modern era, and his tenure has shown the inadequacy of voluntary disclosure. He hasn’t released his tax returns, and the trust controlling his business interests, overseen by his two eldest sons and his longtime accountant, is anything but blind. Litigants typically don’t withhold information that speaks well of themselves so it’s natural to wonder about what it is in his financial records that Trump has been so determined to hide.
In the meantime, the Supreme Court has removed Team Trump’s ability to argue that the president resides atop Olympus, untouched by the rules that govern the rest of us. “In our judicial system, ‘the public has a right to every man’s evience’” Roberts noted. “Since the earliest ays of the Republic, ‘every man’ has included the President of the United States.”
That doesn’t sit well with Trump, who predictably thinks the ruling was all about him. “This is all a political prosecution,” he tweeted Thursday. “Courts in the past have given ‘broad deference.’ BUT NOT ME!”