The Supreme Court’s decisions Thursday on two separate cases involving subpoenas for the president’s personal financial information are legal defeats for the presidency. Politically, they are a win for Donald Trump.
Both opinions were authored by Chief Justice John Roberts and were ostensibly resounding 7–2 defeats for the president’s position. But there’s less here than meets the eye.
The State Grand Jury Subpoena
One case involves a subpoena issued by a New York state grand jury conducting a criminal investigation led by the office of Cyrus Vance, the Manhattan district attorney.
That investigation is believed to be focused, at least in part, on the payment of hush money to women who claim to have had liaisons with Donald Trump about a decade before he became president, including how the reimbursement for those payments was allegedly booked by the Trump real-estate organization.
The subpoena, issued to Trump’s longtime accounting firm, Mazars, is believed to be sweeping, seeking voluminous financial information (including tax-return information), over a number of years.
The Court’s ruling against the president is emphatic. It was expected that the president would lose. This seemed obvious during the oral argument, when the Court focused intently on the fact that, while the president was making a broad immunity claim, he was not arguing that he had immunity from being investigated; just that he had immunity from complying with subpoenas — indeed, subpoenas addressed to a third-party agent of his, not to the president himself.
This was an untenable position. Logically, it was foreclosed by Clinton v. Jones, in which the Court permitted Paula Jones’s civil sexual-harassment suit to proceed against President Clinton, including discovery.
Moreover, as Chief Justice Roberts recounts in his opinion, it has been the law of the United States since the 1807 Aaron Burr treason trial that a president — Thomas Jefferson, in that case — may be subpoenaed in a criminal investigation.
The Court observes that presidents from Monroe to Clinton have all accepted this ruling by the iconic John Marshall (then the circuit justice for Virginia, later the most consequential Supreme Court chief justice in American history).