On 9 July 2020, the United States (US) Supreme Court, on the last day before the end of the Court’s term, handed down decisions No. 19-635 (Trump v. Vance, District Attorney of the County of New York et al., certiorari to the US Court of Appeals for the Second Circuit) and No. 19-715 (Trump et al. v. Mazars USA, LLP, et al., certiorari to the US Court of Appeals for the District of Columbia, combined with No. 19–760, Trump et al. v. Deutsche Bank AG et al., certiorari to the United States Court of Appeals for the Second Circuit), both relating to subpoenas for personal financial records of the incumbent US President Donald J. Trump, his family and his businesses. Both are landmark cases: it is the first time a State criminal subpoena is issued for personal documents of a President (No. 19-635), and it is the first time that the Supreme Court is called upon to examine compliance with Congressional subpoenas pertaining to such documents (and only the second on any documents to be examined at appellate level, after the case of President Richard Nixon). While both cases concerned basically the same subject, the Supreme Court issued different decisions and, in fact, under a 7-2 majority in both (Justices Thomas and Alito dissented in both, while Justices Kavanaugh and Gorsuch, appointed by the incumbent President himself, concurred in both). Both decisions focused on the concepts of the separation of powers and the three, distinct branches of government.
Branches of government, separation of powers and the U.S. Constitution
Most people are familiar with the three branches of government (legislative, executive, judiciary) and the separation of powers. There are, however, two interrelated misconceptions relating to their differences and their origin. The 17th century philosophers John Locke (Two Treatises of Government) and Charles-Louis de Secondat, Baron de La Brède et de Montesquieu (The Spirit of Laws), who was a follower of Locke, are most often credited with advancing these concepts. The first misconception is that these concepts are identical; they are not. A full analysis is beyond the present scope, but suffice to say that Locke, for example, presents the three branches as the legislative, the executive and the federative (power to make international acts and to conduct foreign affairs such as peace or war), and mentions that the first must be separate but that, for the other two, separation is difficult (pp. 164-5 and 329). In contrast, Montesquieu advances both concepts as we know them today (pp. 156-7). This brings us to the second misconception. The first philosopher to actually advance both concepts was Aristotle approximately 2000 years before. In his work Politics (Book IV), he writes “All constitutions have three parts […] One of the three parts [1] deliberates about public affairs (legislative); the second [2] concerns the offices,…(executive); and the third [3] is what decides lawsuits (judiciary).”
The U.S. Constitution is firmly founded on above concepts. Articles I through III refer to the legislative, executive and judiciary respectively and separately, each outlining the holders and duties of each branch. Concordantly, former US President and Founding Father of the US James Madison, one of the most important individuals in the drafting of the US Constitution, in Federalist Paper No. 47 wrote: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
Overview of the cases
In No. 19-715, the issue was 4 subpoenas issued in April 2019 by three Committees of the US House of Representatives, to the accounting firm of the President, Mazars USA, LLP, Deutsche Bank and Capital One, requesting information about the President’s, his family’s and his businesses’ finances (contracts, accounts, etc.) for a variety of times, ranging from all documents held to documents from 2010 onwards, 2011 to 2018, and 2016 onwards. Justifications for the subpoenas by the Committees included legislative efforts against corruption, terrorism and money laundering, and investigation into the undermining of the US political process (Russian interference in the 2016 elections). In No. 16-635, a grand jury-issued criminal subpoena was served in August 2019 by the New York District Attorney (DA) to Mazars USA, LLP, requesting Mazars to produce financial records, tax returns, etc., of the President from 2011 to 2019, pursuant to the DA’s investigation into business transactions that may have violated New York State law. The subpoena essentially copied one of the four House subpoenas referenced in No. 19-715. The President sued the DA and Mazars, claiming that, under Articles II and VI (Supremacy Clause, stipulating that the Constitution and federal laws based on it, are superior to State laws) of the U.S. Constitution, “a sitting President enjoys absolute immunity from state criminal process.”
The judgement of the Supreme Court
In both judgements, the Supreme Court examined the cases from the perspective of the separation of powers. The basic difference is that the one case concerns the legislative versus the executive, while the other the judiciary (at State level) versus the executive. Hence, to a large extent, the Supreme Court examined if, and if so, how much, the President is immune from investigative processes of the other two branches of government, using US v. Nixon (subpoena to the White House for the release of discussions of the break-in at the Democratic National Committee headquarters at the Watergate building complex) extensively as precedence.
In the case of the House subpoenas (No. 19-715), the Supreme Court ruled that, per precedence, while Congress does not have a constitutional power to conduct investigations or issue subpoenas, it has the power of inquiry necessary for it to legislate properly under the following limitations: the subpoena and the information obtained have to serve a valid legislative purpose, they must not have the purpose of law enforcement (this is the executive and judiciary’s roles), they must not concern private affairs or compel disclosures, and they must guarantee the constitutional rights of the recipients throughout the course of the investigation. It rejected the President’s argument for application of the higher standard as it appears in US v. Nixon, since personal records are not the same as privileged deliberations within the executive and the subpoenas of the present case did not concern criminal proceedings. However, it also rejected the House’s argument that these subpoenas were like any other Congressional subpoena, since the fact that personal records of the incumbent President were requested could and should not be ignored. The Court concluded that matters of separation of powers are prominent in this case, considering that a judgement fully in favor of the House could potentially lead to imperious control of Congress over the Executive, disturbing the separate but equal nature of the branches of government. It remanded the case for further judgment in the lower courts, in accordance with the following conditions (leaving room for others as well):
- The court must determine whether involvement of the President’s personal papers is warranted and whether Congress can obtain the necessary information to legislate from any other source.
- The evidence offered by Congress for the legislative purpose must be specific.
- The breadth of the subpoena must be “no broader than reasonably necessary to support Congress’s legislative object,” to avoid, as much as possible, conflict between the different branches of government.
- The court must “carefully scrutinize” the burden imposed on the President by the subpoena in question, considering that Congress is “a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage.”
In the case of the New York’s DA subpoena (No. 19-635), however, the Supreme Court decided in the opposite direction, highlighting that any burden imposed by a Congressional subpoena does not apply to judicial processes involving the President and that, in contrast to legislative purposes, which “involve predictive policy judgments,” the judiciary enforces penalties. Building again on US v. Nixon, but also on US v. Burr (involving the accusation by former US President Thomas Jefferson of his former Vice-President Aaron Burr for treason and, in a second trial, for attempting to incite war with Spain), it reaffirmed that “the President’s generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.”
The Supreme Court recognized the independence of the Executive, especially from actions of the States, and the fact that criminal litigation related to official acts may be burdensome and thus warrant immunity, but dismissed that this was the case here, as there is no additional burden imposed on the President’s constitutional duties by “a properly tailored criminal subpoena” and the subpoena does not concern official acts. Arguments pertaining to potential stigma or harassment of the President by the subpoena were also dismissed, as mere provision of information does not imply an inherent stigma and there is extensive legislation relating to secrecy of the grand jury process and vexatious civil suits, providing ample judicial remedies to the President. The Supreme Court also dismissed the argument for applying a heightened standard to the State subpoena compared to the standard of its federal counterparts, arguing that this would extend protection reserved for official documents to the President’s private documents, that, if adequately warranted, there is no reason that State subpoenas should be held to a higher standard, and that, if protection of the executive is not an issue, requiring a heightened standard for a State subpoena or even delaying its execution until the end of the President’s term, would impede the relevant necessary investigations and delivery of justice.
Conclusion
The Supreme Court chose to restrict and apply more austere conditions on a House subpoena of a non-criminal nature towards the President, especially in relation to personal documents, in large part due to the potentially politically antagonistic relationship between the two and the need for both to maintain their separate authority. In contrast, in the case of a State criminal subpoena, it reiterated that its timely enforcement is key to the proper functioning of justice, albeit leaving room for the President to raise constitutional or other concerns specific to the subpoena at the lower level courts. In the latter case, it seems that the Supreme Court placed the operation of the Judiciary as a primary function of the system of government, not least considering also its non-political character and already strict existing legal safeguards. One thing is, however, certain: the ideas of Aristotle still remain highly relevant, inter alia, for the award of justice even today.
About the author
Alexandros Kyriakidis is a PhD candidate in the Department of International and European Studies
at the University of Macedonia in Greece.
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