SCOTUS rejects presidential ‘absolute immunity’ from criminal process (updated)

The Roberts Court, November 30, 2018. Seated, from left to right: Justices Stephen G. Breyer and Clarence Thomas, Chief Justice John G. Roberts, Jr., and Justices Ruth Bader Ginsburg and Samuel A. Alito. Standing, from left to right: Justices Neil M. Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett M. Kavanaugh. Photograph by Fred Schilling, Supreme Court Curator's Office.

The biggest loser today at the Supreme Court was Attorney General William “Coverup” Barr. His career-long advancement of an imperial presidency under the unitary executive theory, asserting that the president is above the law and not answerable to Congress or the courts, was soundly rejected by the Supreme Court in defense of constitutional separation of powers. Even the dissenters today reject Barr’s “absolute immunity” from criminal process theory.

As I predicted after oral argument of these cases for Trump’s financial documents, the court remanded the cases back to the trial court with instructions for further proceedings. These cases will not be resolved before election day – a short-term “win” for Trump from a political calculation, he successfully “ran out the clock” – but the long-term legal implications are the Manhattan District Attorney and Congress are eventually going to obtain access to at least some of the documents subpoenaed.

By then, it is increasingly likely that Trump will not be president. The Manhattan grand jury is likely to indict Trump and possibly his family members for tax fraud and tax evasion, New York Regulators Examine the Trump Family’s Tax Schemes, detailed in Mary Trump’s new book Too Much and Never Enough: How My Family Created the World’s Most Dangerous Man, and reported by the New York Times last year, Trump Engaged in Suspect Tax Schemes as He Reaped Riches From His Father, and for the hush money payments to Stormy Daniels and Karen MacDougal in which Trump has already been identified in pleadings – “at the direction of, and in coordination with ‘Individual 1’” – in the prosecution of his former lawyer and fixer, Michael Cohen. Michael Cohen: “Individual 1 is Donald J. Trump”.

Donald Trump cannot be pardoned, nor try to pardon himself, for state law violations. New York holds the key to his future prosecution.

Matt Naham reports for Law & Crime, In Landmark Tax Return Case, Supreme Court Rules Trump Is Not Immune to Criminal Process:

The Supreme Court, in a 7-2 decision on Thursday, said that it is not so that President Donald Trump is absolutely immune to the criminal process, meaning a state prosecutor move forward with an attempt to obtain Trump’s tax returns as part of a criminal investigation.

“Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President,” the Supreme Court held in Trump v. Vance.

Chief Justice John Roberts delivered the opinion. That was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Justice Brett Kavanaugh penned an opinion concurring in the judgment; Justice Neil Gorsuch joined:

The President next claims that the stigma of being subpoenaed will undermine his leadership at home and abroad. But even if a tarnished reputation were a cognizable impairment, there is nothing inherently stigmatizing about a President performing “the citizen’s normal duty of … furnishing information relevant” to a criminal investigation. Branzburg v. Hayes, 408 U. S. 665, 691. Nor can the risk of association with persons or activities under criminal investigation absolve a President of such an important public duty.

The consequences for a President’s public standing will likely increase if he is the one under investigation, but the President concedes that such investigations are permitted under Article II and the Supremacy Clause. And the receipt of a subpoena would not seem to categorically magnify the harm to the President’s reputation. Additionally, in the grand jury context longstanding secrecy rules aim to prevent the very stigma the President anticipates.

From the opinion:

“Given these safeguards and the Court’s precedents, we cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause. Our dissenting colleagues agree,” Roberts writes. “Rejecting a heightened need standard does not leave Presidents with ‘no real protection.’ To start, a President may avail himself of the same protections available to every other citizen.”

Justice Roberts remand the case back to the trial court:

“The arguments here and in the Court of Appeals were limited to absolute immunity and heightened need. The Court of Appeals, however, has directed that the case may be returned to the District Court, where the President may raise further arguments as appropriate.”

“We agree that Presidents may challenge specific subpoenas as impeding their Article II functions.” “And although we affirm while Justice Thomas would vacate, we agree that this case will be remanded to the District Court.”

Returning to Law & Crime:

Shortly after the Vance decision came down, the Supreme Court ruled in Trump v. Mazars.

Chief Justice Roberts delivered the opinion, which Justices Kavanaugh, Ginsburg, Breyer, Sotomayor, Kagan and Gorsuch joined (the same lineup as in Vance). Again, Justices Thomas and Alito dissented.

The High Court held that the “courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information,” vacating the judgments on the validity of the subpoenas while sending the disputes back to the lower courts [emphasis ours]:

Neither side identifies an approach that adequately accounts for these weighty separation of powers concerns. A balanced approach is necessary, one that takes a “considerable impression” from “the practice of the government,” McCulloch v. Maryland, 4 Wheat. 316, 401, and “resist[s]” the “pressure inherent within each of the separate Branches to exceed the outer limits of its power,” INS v. Chadha, 462 U. S. 919, 951. In assessing whether a subpoena directed at the Pres- ident’s personal information is “related to, and in furtherance of, a legitimate task of the Congress,” Watkins, 354 U. S., at 187, courts must take adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the unique position of the President.

Roberts proposed a four part test:

Several special considerations inform this analysis. First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. “‘[O]ccasion[s] for constitutional confrontation between the two branches’ should be avoided whenever possible.” Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 389–390 (quoting Nixon, 418 U. S., at 692). Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. 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. The specificity of the subpoena’s request “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.” Cheney, 542 U. S., at 387. Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial, the better. That is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency. Fourth, courts should assess the burdens imposed on the President by a subpoena, particularly because they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage. Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.

The DC Circuit will now determine how rigorous a test to apply, and this case will wend its way back up through appeals.

The bottom line is that in neither case were the president’s assertions of absolute immunity and privilege accepted.

The litigation is far from over.

Trump’s tax returns may be guarded by grand jury secrecy; Congress will have to tailor its broad asks.

Notably, President Trump’s two SCOTUS appointees sided in cases against him.


The long road to this day was years in the traveling. Before his 2016 campaign for president, Trump said he would release his tax returns, as U.S. presidents have voluntarily done for decades. In 2016, President Trump reneged on that, citing the “bogus” tax return audit justification.

Since then, multiple investigations—congressional or otherwise—put the president’s tax returns in the spotlight. The investigations sought to obtain the president’s tax returns from third parties. In Dec. 2019, the Supreme Court granted certiorari in three Trump tax return disputes that were dropped on the High Court’s doorstep: Trump v. Vance, Trump v. Mazars USA, and Trump v. Deutsche Bank.

The Vance case was so named because Manhattan District Attorney Cyrus Vance sought to obtain President Trump’s tax returns as part of a criminal investigation of the Trump Organization (see: hush payments). The Mazars case involved a congressional subpoena of Mazars USA, Trump’s finance firm. Democrats on the House Oversight Committee in April 2019 demanded multiple years of Trump’s tax documents for the purported purpose of providing insight as to whether federal tax laws need to be updated.

In May 2019, Rep. Richard Neal (D-Mass.), the chairman of the House Ways and Means Committee, formally requested the last six years’ worth of President Trump’s tax returns, citing what was dubbed a “little-known provision” in tax code to do so.

Neal wrote a letter to the IRS, citing his authority pursuant to 26 U.S. Code § 6103(f):

Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request, except that any return or return information which can be associated with, or otherwise identify, directly or indirectly, a particular taxpayer shall be furnished to such committee only when sitting in closed executive session unless such taxpayer otherwise consents in writing to such disclosure.

Neal said that the Committee was “considering legislative proposals and conducting oversight related to our Federal tax laws, including, but not limited to, the extent to which the IRS audits and enforces the Federal tax laws against a President.”

Trump lawyers said this was not a legitimate inquiry, but was a conspiracy to harass a sitting president.

The Deutsche Bank case involved subpoenas issued by the House Intelligence and Financial Services Committees. The focus of these investigations included whether or not the president committed fraud by inflating his assets on official forms or if he violated campaign finance law by authorizing hush money payments by way of his former attorney, convicted felon Michael Cohen. Additional congressional avenues of investigation centered on whether the president, his business–and his family–may have engaged in or otherwise had anything to do with money laundering.

Trump lawyers called the subpoenas of Deutsche Bank and Capital One outrageously broad.

The district and circuit courts declined to block the subpoenas.

Just this week, Deutsche Bank was hit with a $150 million penalty for enabling Jeffrey Epstein. Lawyers said that it appeared the German-based bank had turned a blind eye to suspicious activity indicative of money laundering.

Last week, Ghislaine Maxwell, longtime Jeffrey Epstein associate, was arrested for recruiting and abusing girls in sex-trafficking ring. If she doesn’t mysteriously die in prison before trial, maybe she will explain all of those photos of Donald Trump with Jeffrey Epstein. She may have tales to tell.

UPDATE: Colin Kalmbacher makes a great point in How Justice Alito’s Blistering Dissent in Vance Case May Be Used Against Trump:

The upshot here is the lower courts–at both the district and appellate level–will have to re-litigate the issues and subject Democratic Party demands to a more thorough form of review than previously occurred. Each decision also provides a potential roadmap, of sorts, for Trump to win outright the second time around.

But near the end of his dissent in the Vance case, Alito made a few keen observations that seriously called those would-be legal lodestars into question viz. the ultimate ruling in Mazars.

The Opening Arguments legal podcast predicted just as much:

“[T]he Court touts the ability of a President to challenge a subpoena by ‘an affirmative showing of impropriety,’ including ‘bad faith’ or retaliation for official acts,” Alito continued–running through, and eventually dismissing, every single one of Roberts’s suggested avenues for Trump. “But ‘such objections are almost universally overruled.’ Direct evidence of impropriety is rarely obtainable, and it will be a challenge to make a circumstantial case unless the prosecutor is required to provide the sort of showing outlined above.”

“For all practical purposes, the Court’s decision places a sitting President in the same unenviable position as any other person whose records are subpoenaed by a grand jury,” the dissent ominously concluded.

And that, no doubt, is music to the collective ear of elected Democrats from Washington, D.C. to New York, New York.


  1. As jmauro, a commenter at Lawyers, Guns & Money, put it: “The ruling is “No president is above the law”, but they post-dated it to the Biden administration.” Couldn’t have said it better myself!

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