In last week’s decision in Trump v. Vance^[1], the Supreme Court addressed for the first time whether a state District Attorney’s Office can issue a state criminal subpoena to a President. Relying on historical examples dating as far back as Aaron Burr in 1807, the Supreme Court held that Article II of the United States Constitution and the Supremacy Clause do not categorically preclude, nor categorically require, a heightened standard for the issuance of a state criminal subpoena to a sitting President. While this landmark decision sets important precedent for potential future state criminal subpoenas, the Court’s decision to remand to the lower courts for further proceedings means that none of the documents covered by the subpoena will be provided to the New York County District Attorney’s Office any time soon.

The Court’s opinion, written by Chief Justice John Roberts and joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, with Justices Kavanaugh and Gorsuch writing a concurring opinion, rejected President’s Trump’s argument that Article II of the United States Constitution and the Supremacy Clause categorically preclude or categorically require a heightened standard for the issuance of a state criminal subpoena to a sitting President. Significantly, the Supreme Court unanimously agreed that the President is not entitled to absolute immunity from a state criminal subpoena and unanimously agreed that the case should be remanded to the lower courts where the President can raise objections to the subpoena because the specific, narrow question before the Court was whether the President was entitled to immunity from the issuance of the subpoena.

Although this alert focuses on the Vance state criminal subpoena, the impact of this case is best understood in conjunction with the Trump v. Mazars opinion, issued at the same time, which affirmed Congress’s authority to conduct investigations in support of its power to consider and enact legislation in which Congress was seeking similar records related to President Trump. While the Court was clear that a President does not enjoy the absolute immunity that President Trump and the Solicitor General argued for, the Court expressed concern over the demand on the President’s time that compliance with these subpoenas would entail, and the potential for abuse. As addressed in more detail below, the Court, without articulating a precise standard, remanded the case back down to the district court for the district court to rule on the President’s specific objections to the subpoena.

Background

The New York County District Attorney’s Office, in the summer of 2018, opened an investigation into “business transactions involving multiple individuals whose conduct may have violated state law.^[2]” In 2019, on behalf of a grand jury, served a subpoena duces tecum (request for documents) on Mazars USA, LLP, the personal accounting firm of the President.

Acting in his personal capacity, the President sued both the District Attorney and Mazars in the Southern District of New York^[3] seeking to enjoin enforcement of the subpoena. The President “asked the court to issue a declaratory judgment that the subpoena is invalid and unenforceable while the President is in office and to permanently enjoin the district attorney from taking any action to enforce the subpoena.^[4]” The Southern District court abstained from exercising jurisdiction and dismissed the case, holding that federal courts are typically precluded from intervening in ongoing state criminal prosecutions, but alternatively held that the President was not entitled to injunctive relief.

The Second Circuit^[5] disagreed with the district court’s decision that abstention was appropriate because the state and federal actors were already in conflict. The Second Circuit held that the trial court did not err when it denied the President’s request for a preliminary injunction, and held that presidential immunity does not categorically bar issuance of a state grand jury subpoena. The Second Circuit also rejected the argument that a state grand jury subpoena must satisfy a heightened showing of need. “The court reasoned that the proposed test, derived from cases addressing privileged Executive Branch communications, had little bearing on a subpoena seeking information relating solely to the President in his private capacity and disconnected from the discharge of his constitutional duties.^[6]”

State Subpoena Power

In its opinion, the Court, at great length, described prior cases where the Court has balanced the Article II implications of allowing the President to fulfill his required duties and the “public interest in fair and accurate judicial proceedings.^[7]” The Court noted that “Marshall’s ruling in Burr, entrenched by 200 years of practice and our decision in Nixon, confirms that federal criminal subpoenas do not rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions.^[8]”

The Court rejected the President and the Solicitor General’s argument that “state criminal subpoenas pose a unique threat of impairment and thus demand greater protection.^[9]” The Court noted “two centuries of experience confirm that a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties.^[10]”  The Court also noted that “200 years of precedent establish that Presidents, and their official communications, are subject to judicial process even when the President is under investigation.^[11]” The Court also recognized that “grand juries are prohibited from engaging in arbitrary fishing expeditions and initiating investigations out of malice or an intent to harass.^[12]” Further, the Court noted “[g]iven these safeguards and the Court’s precedents, we cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause.^[13]”

Finally, the Court rejected the President’s and the Solicitor General’s position that state criminal subpoenas should be entitled to a heightened standard of review. The Court held “such a heightened standard would extend protection designed for official documents to the President’s private papers.^[14]” Succinctly put, “their proposed test is derived from executive privilege cases that trace back to Burr.^[15]” “Second, neither the Solicitor General nor Justice Alito has established that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions.^[16]”

Leaving no doubt, the Court held “[f]inally, in the absence of a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence. Requiring a state grand jury to meet a heightened standard of need would hobble the grand jury’s ability to acquire all information that might possibly bear on its investigation.^[17]”

What does this mean?

Because the Court remanded the case back down to the lower courts, it is unlikely that the documents will be produced, if required to, anytime soon, let alone before the election. It is anticipated that this case, at a minimum, will wind up before the Second Circuit again, unless the parties come to some sort of agreement regarding disclosure of this information. We haven’t heard the end of this fight.

Second, it is possible, however unlikely, that political pressure in the upcoming election cycle pushes President Trump to voluntarily release his financial information. Although he has been resistant thus far, this election cycle has not yet fully begun, and he very well might have to change his position on the release of this information.

Regardless of the next steps in this particular litigation, the Supreme Court’s holding is sure to be important precedent for future state criminal investigations as it reinforced that notion that no man is above the law, including the President of the United States. It is significant that a unanimous Supreme Court rejected the notion that a President is categorically immune from the issuance of a state grand jury subpoena.

1. 591 U.S. ___ (2020(referred to as  Vance herein)
2. Vance at pg. 2.
3. 395 F. Supp. 3d 283, 290 (SDNY 2019)
4. Vance at pg. 2 (internal citations omitted)
5. 941 F. 3d 631, 637, 639 (2d Cir. 2019)
6. Vance at pg. 3 (internal citations omitted).
7. Vance at pg. 9
8. Vance at pg. 11.
9. Vance at pg. 11
10. Vance at pg. 13.
11. Vance at pg. 14 (internal citations omitted).
12. Vance at pg. 16 (internal citations omitted).
13. Vance at pg. 17.
14. Vance at pg. 18.
15. Vance at pg. 18.
16. Vance at pg. 18.
17. Vance at pg. 19.​