The US Supreme Court ruled on Thursday that state prosecutors in New York can subpoena years of President Donald Trump’s tax returns.
The decision is a blow to Trump, who argued that as president he should be completely immune from a grand jury subpoena, and to the Justice Department, which didn’t embrace Trump’s immunity argument but pushed for a higher standard for state prosecutors to meet before they could get the president’s records.
Thursday’s decision does not mean the public will get to see Trump’s tax returns, however. By law, documents subpoenaed as part of grand jury investigations are secret, though they could later become public if used as evidence in trial. Trump has refused to release his tax returns, first as a candidate and later as president.
The New York case centered on a grand jury subpoena for eight years of Trump’s tax returns as part of an investigation by New York District Attorney Cy Vance Jr. into Trump’s role in hush-money payments made to two women, Stormy Daniels and Karen McDougal, who claimed to have had affairs with Trump before he took office.
The majority decision was written by Chief Justice John Roberts Jr., who was joined by the justices from the court’s liberal arm. Justices Brett Kavanaugh and Neil Gorsuch, Trump’s two nominees to the court, agreed that Trump was not absolutely immune from the subpoena.
In a separate decision also released on Thursday, the court revived a fight between Trump and House Democrats over congressional subpoenas for Trump’s financial records — a majority of the court ruled that the lower courts, which had sided with the congressional committees, failed to fully consider the separation of powers issues at play, and kicked the cases back down for more proceedings.
Although the court didn’t rule out the possibility that the committees could win in the end, it’s still something of a victory for Trump because it at least delays the issue. Democrats have been trying to get his financial records for more than a year.
Roberts also wrote the 7–2 opinion in the congressional subpoenas case, joined by the court’s liberal wing again as well as Kavanaugh and Gorsuch.
Trump slammed both decisions, tweeting: “Courts in the past have given ‘broad deference’. BUT NOT ME!” Responding to the decision in the grand jury subpoena case, he tweeted that it was “all a political prosecution” and that it was “not fair” that he had “to keep fighting in a politically corrupt New York.”
Vance said in a statement that Thursday’s ruling was a “tremendous victory for our nation’s system of justice and its founding principle that no one – not even a president – is above the law.”
“Our investigation, which was delayed for almost a year by this lawsuit, will resume, guided as always by the grand jury’s solemn obligation to follow the law and the facts, wherever they may lead,” Vance said.
House Democrats vowed to continue to press their subpoenas in the lower courts. Rep. Adam Schiff, chair of the House Permanent Select Committee on Intelligence, one of the three committees that issued subpoenas for Trump’s financial records, said in a statement that they were disappointed the court had adopted a new standard for weighing these types of congressional subpoenas going forward.
“The Supreme Court’s remand of this case to permit the lower courts to apply the new standard will serve to delay the Committee’s investigation — and, given the risk of foreign influence over this President, such delay is dangerous — but we remain confident that we will ultimately prevail. And in light of the President’s tweets this morning, he appears to believe the same,” Schiff said.
The New York Case
In the grand jury subpoena case, Roberts wrote that there was a long history of legal precedent to support the idea that sitting presidents can be subpoenaed, going back to the early 1800s. Addressing Trump’s position that a president should be immune specifically against a grand jury subpoena in a state criminal investigation, Roberts rejected Trump’s arguments that this type of subpoena would distract from his official duties, create a “stigma” that would undermine his authority, and make him a target for harassment.
“To be sure, the consequences for a President’s public standing will likely increase if he is the one under investigation. But, again, the President concedes that such investigations are permitted under Article II and the Supremacy Clause, and receipt of a subpoena would not seem to categorically magnify the harm to the President’s reputation,” Roberts wrote.
The Justice Department had argued that a grand jury subpoena for a sitting president’s personal records should have to meet a “heightened need standard” — that prosecutors should have to show that the documents were necessary for specific charging decisions and that the subpoena was the only option to get them. But Roberts noted that Trump hadn’t claimed executive privilege over the documents and wrote that private records shouldn’t get the same protection as official records.
Roberts wrote that Trump still had options to challenge the grand jury subpoena — he could raise the same types of legal challenges that any other person could make when facing a demand for documents in a criminal investigation, and he could even make arguments specific to his position as president, such as that a grand jury subpoena was intended to interfere with his official duties.
“Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need,” Robert wrote.
Kavanaugh and Gorsuch didn’t join the entirety of Roberts’ opinion, but agreed that Trump was not absolutely immune. Kavanaugh wrote in a concurring opinion, joined by Gorsuch, that in any future challenge raised by Trump or another president to this type of subpoena, they would have adopted a different, stricter standard for judging whether prosecutors could get a president’s records.
Justices Clarence Thomas and Samuel Alito Jr. wrote dissenting opinions saying they would have adopted stricter standards that prosecutors would have to meet before being able to subpoena and actually get a sitting president’s records.
The House Case
In the case of the congressional subpoena, Roberts again began with a history lesson, noting that fights between the executive and legislative branches over access to documents stretched back to President George Washington. But until recently, he wrote, the two branches had worked things out among themselves and not involved the courts.
Roberts rejected Trump and the Justice Department’s arguments that congressional subpoenas for a president’s personal records should be held to a more “demanding” standard that the court had adopted before in cases involving former president Richard Nixon’s White House tapes during the Watergate scandal. Trump’s financial records were personal and not related to his job as president, and there was no claim of executive privilege, Roberts wrote.
“The standards proposed by the President and the Solicitor General—if applied outside the context of privileged information—would risk seriously impeding Congress in carrying out its responsibilities,” Roberts wrote.
But he wrote that it mattered that these subpoenas involved a sitting president and couldn’t be treated like any other congressional demand for documents.
“Far from accounting for separation of powers concerns, the House’s approach aggravates them by leaving essentially no limits on the congressional power to subpoena the President’s personal records,” Roberts wrote. Quoting from Alexander Hamilton’s Federalist Papers, he continued: “Without limits on its subpoena powers, Congress could ‘exert an imperious controul’ over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared.”
Roberts laid out a four-part standard for how the lower courts should consider the separation of powers issue going forward. He wrote that judges should consider if Congress “reasonably” could get the information elsewhere; insist that a subpoena only demand documents that are “reasonably necessary” to fulfill Congress’ legislative goals; “be attentive” to how much specific evidence Congress gives to show it needs the records to carry out a legislative purpose; and, finally, “carefully” consider the burdens a subpoena would impose on a president.
Thomas dissented, writing that he believed Congress had no power to issue a legislative subpoena for anyone’s private documents, whether or not they were related to a president. If Congress wanted documents from a president, it had to be in the context of impeachment, Thomas wrote. Alito wrote his own dissent, saying he agreed with the majority that Congress could subpoena a president’s documents, but he didn’t think Roberts’ test was strict enough.
The justices heard arguments by telephone in May in a trio of lawsuits that Trump filed trying to shield his tax returns and other financial records. Two of the cases involved subpoenas issued by House Democrats, and the third involved a grand jury subpoena issued as part of a criminal investigation by Vance.
The subpoenas were sent to financial institutions that held Trump’s records — accounting firm Mazars USA, Deutsche Bank, and Capital One — but the companies declined to take a position, leaving it up to their client, Trump, to duke it out in court with lawmakers and Vance’s office. Trump repeatedly lost in the lower courts, but the Supreme Court paused rulings that would have forced Mazars and the banks to turn over records when the justices agreed to hear the case in December.
During arguments before the Supreme Court, Trump’s lawyer tried to distinguish his situation from cases that former presidents Bill Clinton and Richard Nixon ultimately lost when they went before the court to fight efforts to probe their affairs. The Supreme Court ruled in 1974 that a grand jury could subpoena tapes that Nixon recorded of conversations in the White House, rejecting his immunity argument. Two decades later, the court ruled in 1997 that Clinton was not immune from facing a civil lawsuit in state court related to issues that predated his presidency.
In the New York district attorney’s case, Trump’s personal attorneys argued that he should be protected by absolute immunity from any criminal investigation while he’s in office.
The Justice Department, which has backed Trump but didn’t push the absolute immunity argument, instead argued that the court should require state prosecutors who want to subpoena information about a president to first go to court and meet a high standard for proving they had a special need to do so.
In the congressional subpoena cases, Trump argued that the Democrat-led committees lacked legislative authority to investigate him and demand his records. House Democrats argued that their authority to issue subpoenas was “extremely broad” and that they didn’t have to articulate up front exactly what legislation they were considering in order to carry out an investigation.
Three Democrat-led House committees subpoenaed financial institutions for Trump’s records, and each offered its own reasons for doing so. The Committee on Oversight and Reform said it wanted to explore whether Trump committed crimes before taking office, whether he had undisclosed conflicts of interest, whether he was complying with a constitutional prohibition against accepting financial benefits (known as the Emoluments Clauses), and whether he’d complied with financial disclosure rules.
The Committee on Financial Services indicated it was interested in probing how US regulators enforced anti–money laundering laws, and the subpoenas would shed light on what Democrats characterized as “questionable” financing provided by banks to Trump and his company. And the House Permanent Select Committee on Intelligence said it wanted Trump’s records as part of a broader investigation into Russian influence in US political systems, and specifically whether foreign actors had leverage over Trump, his campaign, his businesses, or his family members.
Two federal appeals courts — the DC Circuit and the 2nd Circuit — ruled in favor of House Democrats.