On Thursday, on the last day of the 2019-20 term, the Supreme Court ruled in much-anticipated cases related to President Donald Trump’s financial records. While the decisions are being hailed as a blow to Trump, here is the bottom line: Unless Trump decides to release his financial records (which he won’t), the public will still not see that information before the election.
In two 7-2 rulings written by Chief Justice John Roberts, the court addressed whether the president could prevent his accounting firm and/or lenders from complying with subpoenas relating to his personal financial documents.
In one case, congressional committees subpoenaed the president’s personal financial records, claiming that they needed this information to analyze the efficacy of laws regarding ethics violations and/or foreign influence in domestic elections. In another case, the Manhattan district attorney, acting on behalf of a grand jury, issued subpoenas for Trump’s accountant and lender as part of an investigation into possible criminal violations related to hush money payments made to women who allegedly had affairs with Trump.
In both cases, Trump argued that his accounting firm and lenders should not have to turn over his financial documents to congressional committees and to a New York grand jury. The court agreed, and disagreed, but mainly punted.
The court’s two decisions Thursday are landmark cases that will help define the contours of Congress’ power to ask for personal information from a sitting president and for a state prosecutor’s power to pursue a criminal investigation relating to a sitting president. The court’s decisions will not provide the public with what many so urgently want before November: a fuller picture of the president’s finances.
Legally, here are the main takeaways. First, the court took a goldilocks approach to the congressional committees’ subpoenas, telling Congress that when asking for information related to a sitting president, they need to show a stronger reason for needing to obtain that information than is typical. However, the test laid out by the court doesn’t go as far as what Trump advocated, which would have essentially forced Congress to show that the information was absolutely necessary for pending legislation. Second, the court rejected Trump’s argument that he should be absolutely immune from having to even comply with a state grand jury subpoena in a criminal investigation.
What happens now? Both cases will go back down to the lower courts to apply the standards laid out by the Supreme Court.
Let us take a moment to remember why and how these two cases made their way to the Supreme Court. Unlike almost every other presidential candidate in modern history, then-candidate Trump did not release his tax returns. And unlike almost every other president in modern history, Trump has taken a position of defiance in the face of congressional and state subpoenas.
Here is what these cases are not about. First, none of the information here concerns official, presidential communications that might be subject to executive privilege or might contain issues related to national security. The information at issue is personal financial information.
Second, none of these subpoenas were directed at the president himself. The president did not have to lift one tweet-happy finger to comply with the subpoenas. Instead, Congress and the state grand jury have asked Trump’s accounting firm and lender to provide this personal financial information.
Still, not wanting to give any ground, Trump argued that Congress exceeded its authority because lawmakers were actually trying to determine whether he broke the law, not the adequacy of laws dealing with government ethics and foreign influence of elections. The Department of Justice also argued against the congressional committees’ ability to issue these subpoenas, claiming that congressional committees should have to satisfy a much higher standard to show that they need personal information about a president. Congress disagreed, arguing that the standard for issuing subpoenas is very low, even with respect to information related to a sitting president, as they only need to show a valid legislative purpose. The lower courts ruled against Trump and in favor of Congress.
The Supreme Court essentially split the difference, saying the standard that Congress has to satisfy is somewhere in between. The justices sent the case back to the lower courts to apply this new, somewhere in-between standard.
The second case involves New York’s prosecutor Cyrus Vance Jr., who is investigating possible violations of state law relating to illegal business practices. Trump claimed that because he is immune from criminal indictment or prosecution while in office, the subpoena should not have been issued. Trump argued that only Congress, via the impeachment process, can hold the president accountable for wrongdoing while in office. Again, the lower courts ruled against Trump.
The Department of Justice, similar to the position it took in the congressional cases, argued that, when it comes to a subpoena for a sitting president’s personal records, whoever is asking — here a state grand-jury — should have to satisfy a higher standard than usual.
The Supreme Court sided with New York’s argument that Trump’s claim of immunity from even an investigation is bunk. And again, let’s remember that these are documents related to Trump’s activities before he became president.
The legal result of Thursday’s decision is more litigation. Both cases get sent back down to the lower courts. Trump’s angry tweeting misunderstands the role of the judiciary and court’s decisions, which are much more about the power of the presidency, and much less about Trump himself.
The punchline for the public is that we will still have to make our assessment about whether to re-elect Trump in November without a full picture of his finances.