Thursday, July 9, 2020
The Supreme Court issued two opinions on the last day of the Court, all pertaining to the non-release of taxes and documents of President Trump. The questions presented (here) had different entities seeking business records or tax returns of the President for oversight or investigations. Some points from the Mazars/Duetsche Bank cases:
- A president contesting demands for presidential documents is not typically a problem because the president usually works it out with the legislature.
- There is a lot of history of "negotiation and compromise - without the involvement of this Court - until the present dispute."
- We're not going to use the typical standards when documents of the President are subpoenaed.
- A four-part test should be used: (a)"First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers." (b) "Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress's legislative objective." (c) "Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose." (d)"Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena."
- "When Congress seeks information 'needed for intelligent legislative action,' it 'unquestionably' remains 'the duty of all citizens to cooperate."
In a 7-2 opinion, the Court sent it back to the lower court to rule consistently with this opinion.
The Vance case was also 7-2. This case also provides enormous historical information and analysis:
- "Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts. This case involves - so far as we and the parties can tell - the first state criminal subpoena directed to a President."
- There is no need to use a heightened standard here to protect the President, "the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence."
- He could still challenge the subpoena just like everyone else could do so.
- "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 .... the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need."
Justice Kavanaugh, with who Justice Gorsuch joined concurring stated, "In our system of government, as this Court has often stated, no one is above the law."
One last point - many say that the public will not see the documents and taxes of President Trump prior to the next election. That depends on whether the President continues this fight to keep the public and an investigating state from receiving these items. The Court has ruled in these two cases and given an opportunity to the President to comply with what every President has done in the past - provide the materials. The question is - will he?