Mazars Is a Victory for Rule of Law
As to Trump’s claim to what his legal team once characterized as “temporary absolute presidential immunity,” the Supreme Court’s answer was simple: No.
The Supreme Court knows how to go out with a bang. On Thursday, the justices closed the (virtual) courthouse doors for the summer after finally releasing two long-awaited rulings on President Trump’s efforts to block the release of his financial information to prosecutors and Congress. The Court took its time in handing down the decisions, thanks in part to delays caused by the coronavirus pandemic, and the drama and importance of the opinions themselves measured up to the frenzy of speculation that preceded them.
The litigation over whether or not the president can prevent the release of his records is significant at multiple levels. On one level, the cases spoke immediately to Trump’s electoral fortunes: Would the House of Representatives be able to obtain these documents in enough time to inform the public of the president’s hidden financial dealings before the November election? The Supreme Court’s Thursday rulings mean the answer is almost certainly no.
But on another level, Trump’s efforts threw into question the balance of power between Congress and the president and suggested a vision of the presidency largely unaccountable to criminal law. The Court decisively rejected this vision—and though much else about the opinions remains muddled, this, at least, is a victory for the rule of law.
The cases began roughly a year ago, when the House subpoenaed financial records concerning Trump and his businesses from two banks—Deutsche Bank and Capital One—and Trump’s personal accounting firm, Mazars. Separately, the Manhattan District Attorney Cyrus Vance sought records from Mazars in the course of a New York state criminal investigation. Trump stepped in to bar the institutions from handing over the material, arguing—with regard to Congress—that the legislature had failed to voice an appropriate rationale for its request, and—with regard to Vance—that Trump’s high office shields him from state-level investigations for as long as he remains president.
Compared with Trump v. Mazars, Trump v. Vance both received less attention in the run-up to the decisions and proved to be the easier case for the Court to untangle. As to Trump’s claim to what his legal team once characterized as “temporary absolute presidential immunity,” the Supreme Court’s answer was simple: No. All nine justices agreed that a total shield from state criminal process was out of the question. This is a thrashing for Trump, but it’s also a reflection of how absurd the president’s assertion of immunity was to begin with. Even the Justice Department, which chimed in during oral arguments as a “friend of the court” in support of Trump’s personal legal team, didn’t endorse this aspect of the president’s argument.
Justices Clarence Thomas and Samuel Alito dissented on other aspects of the case, so the nine-justice unanimity was not complete. But in an era when contentious issues often split the justices five to four, the seven-to-two ruling registers as an overwhelming rebuke to Trump—especially given that both of Trump’s appointees to the Court, Justices Neil Gorsuch and Brett Kavanaugh, voted against the president.
Chief Justice John Roberts wrote for the majority in both Vance and Mazars, and to some extent he seems to have tried to knit the two together as a matching set: The majority opinion in Mazars is studded with references to Vance, and the lengthy yarn about Aaron Burr and Thomas Jefferson that opens Vance pops up in Mazars as well. And the same six justices ruled with Roberts in both cases. But the Court’s decision in Mazars is a more complicated story. As scholars and analysts puzzled through the ruling over the course of the day, nobody seemed to be able to agree whether Congress had won or lost.
The majority steered away from Trump’s argument that Congress must clear a consistently high bar in order to subpoena information relating to the president, whether the material is protected by executive privilege—as were the Watergate tapes in United States v. Nixon—or not, as in this case. This would have been an enormous blow to Congress’s ability to conduct oversight of the executive branch. But the chief justice also declined to embrace the House’s view of broad congressional investigative authority with little constraint from the courts, worrying that this would place “essentially no limits” on Congress’s power. The majority instead suggested that courts weighing these cases should pay greater attention to the balance of power between Congress and the presidency, encouraging the legislature to provide judges with more evidence that the subpoenas are sufficiently focused and relevant to congressional work.
All of this sounds reasonable enough. Yet there is a great deal of precedent establishing Congress’s authority to investigate as extraordinarily broad—so much so that every single lower court that considered the subpoenas at issue in Mazars came down in favor of Congress before the case slammed into a wall at the Supreme Court. From one point of view, the high court’s ruling suggests a road map for how legislators might craft subpoenas that will withstand judicial scrutiny. From another, though, it’s both constraining and condescending. Mazars “basically tells Congress that it needs to do homework in just the precise way that the Court wants it to, or it can’t oversee the president,” Josh Chafetz, a law professor and scholar of Congress, told me. “This is both wildly pro-presidential and dismissively anti-Congress.”
In both Vance and Mazars, the Supreme Court passed the cases back down to the lower courts to reconsider in light of Thursday’s rulings. It’s not quite clear what will happen next, or on what timeline. The Manhattan district attorney may well obtain the financial documents from Mazars sooner rather than later, but laws protecting grand-jury secrecy mean that the public likely will not learn the contents soon. Meanwhile, as both David Graham and David Frum have noted, the plodding pace of litigation means that courts are unlikely to hand Trump’s records over to Congress before the November election. So whatever may be hiding in those documents, voters will not have the benefit of knowing about it before they fill out their ballots.
On the other hand, how many swing voters are really out there for whom the contents of Trump’s financial records would have been the deciding factor in their vote for president? Trump survived the Russia investigation and impeachment with his political fortunes more or less intact; it took his catastrophic bungling of a pandemic and his hostility toward Black Americans protesting against police violence for his poll numbers to drop. It’s hard to imagine what could be in those documents that would be more of an indictment of Trump’s fitness for the presidency than his presiding over the deaths of 130,000 Americans.
The more significant effect of Mazars and Vance was always going to be on the level of institutions rather than individuals—the positioning of the presidency in relation to Congress and state law enforcement, rather than Trump in relation to the coming election. In the words of my colleague Margaret Taylor, who writes about Congress, the decision could have been a “bloodbath for congressional power.” It wasn’t, but whether and how the ruling might reshape the relationship between Congress and the presidency, for better or worse, is an open question—one that might be answered in the months and even years to come as Congress regroups following the Court’s decision. Perhaps the legislature will be more successful in litigation once it hones its requests for information along the lines of the Court’s suggestions. Or perhaps, as the Mazars majority seemingly encouraged, the legislature will be spurred to work out a renewed process of cooperation and negotiation with the executive branch outside the space of the courts.
As enthusiastic as the chief justice seemed about the latter possibility, though, it’s hard to imagine that Congress will find a willing negotiating partner in the current president, who once announced that his administration was “fighting all the subpoenas.” The long-term effects of Mazars for relations between the political branches may look very different depending on who wins the November election.
Yet despite these broader institutional questions, Trump appears incapable of understanding the rulings in any context other than the purely personal. “PRESIDENTIAL HARASSMENT!” he tweeted in the hours before the Supreme Court released the opinions. And then, after the decisions came down: “Courts in the past have given ‘broad deference.’ BUT NOT ME!” There is one line in Roberts’s opinion in Mazars, at least, that Trump should be able to wholeheartedly endorse: “There is not always a clear line,” Roberts wrote, “between [the president’s] personal and official affairs.”