“In our judicial system,” Chief Justice John Roberts wrote in Vance, quoting an old legal maxim, “‘the public has a right to every man’s evidence.’ Since the earliest days of the Republic, ‘every man’ has included the President of the United States.” Nevertheless, Roberts wrote, while Trump does not have absolute immunity to Vance’s subpoenas, he can continue to contest particular subpoenas individually on various grounds in the lower courts, including arguing “that compliance with a particular subpoena would impede his constitutional duties.” Vance’s grand jury may ultimately get its hands on the president’s documents, but the public will not see them anytime soon, if at all.
In Mazars, Roberts acknowledged that “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,” but he also rebuked the House for its own argument, which would leave “essentially no limits on the congressional power to subpoena the President’s personal records.”
The exalted language of Roberts’s opinions conceals their results, which are, to paraphrase Saint Augustine: Give me oversight, and give me transparency, but not yet.
In fairness to Roberts, there is a public interest in preventing Congress from simply trying to impede presidents’ ability to do their job, and the chief justice was likely averse to having the Court appear to be interfering in a presidential election. But Roberts’s decisions will ultimately shield Trump from necessary public scrutiny.
The president is subject to no meaningful oversight if the executive branch can simply run out the clock by litigating the minutiae of each request—and a president need only hold out for the two years between congressional elections, allowing the subpoenas to expire—but that is the situation Roberts has produced: the president who is nominally not immune to such requests but has clear avenues for avoiding them—at least, as long as he can retain a friendly majority on the Court.
David Frum: Trump’s loss at the Supreme Court is a win for his candidacy
The decision is disastrous for the public, but a grand victory for the Roberts Court as an institution. After all, in both cases, Justice Brett Kavanaugh, who vowed revenge on the left at his confirmation hearing, and Justice Neil Gorsuch, who was presented by Trump as a reward to conservative activists for putting him in office, joined the majority, showcasing their independence without actually defying the president in any meaningful way. They ruled against the Trump administration’s claim of absolute immunity, while paving a path for Trump to avoid releasing the requested information until after the election. The independence of the Supreme Court’s conservative majority is affirmed, while still granting the president the outcome he desired.