By James Sprague
The New York District Attorney’s Office (“N.Y.D.A.”) began investigating President Donald Trump’s business transactions in the summer of 2018 after the F.B.I. raided the residence of Michael D. Cohen, President Trump’s personal attorney.[1] After the raid, Cohen admitted to campaign fraud, including using campaign funds to provide a $130,000 “hush” payment to adult film star Stormy Daniels, who claimed participation in an extramarital affair with President Trump prior to his campaign.[2] The N.Y.D.A., concerned both that Cohen’s illegal actions resulted from President Trump’s directives and that Cohen’s hush payments violated New York law, chose to defer its investigation into Trump’s finances to allow for a federal investigation.[3]
After the federal investigation concluded without charges, the N.Y.D.A. resumed its investigation and served a grand jury subpoena on President Trump, requesting numerous financial information.[4] The Trump Organization provided responsive documents, and the N.Y.D.A. then requested President Trump’s tax returns.[5] The Trump Organization refused the request, arguing that President Trump’s tax returns were irrelevant to the investigation.[6] The N.Y.D.A. responded by serving President Trump’s accounting firm, Mazars USA LLP (“Mazars”), with a grand jury subpoena seeking President Trump’s financial and tax records from January 2011 through the date of the subpoena.[7]
President Trump sued the N.Y.D.A. in the Southern District Court of New York to enjoin enforcement of the Mazars subpoena, arguing that it violated the absolute immunity granted to sitting presidents by Article II and the Supremacy Clause of the Constitution.[8] The district court dismissed President Trump’s suit,[9] and the Second Circuit affirmed, noting that presidential immunity, while ultimately extending to state criminal proceedings, does not protect sitting presidents from investigative steps, such as compliance with subpoenas.[10] Furthermore, the Second Circuit noted that the N.Y.D.A.’s Mazars subpoena made no request from President Trump and therefore did not implicate presidential immunity.[11] President Trump appealed to the Supreme Court of the United States.[12] The Court originally intended to hear oral arguments on March 31, 2020.[13] Due to the coronavirus pandemic, however, the Court has postponed all March oral argument sessions.[14] The Court will likely announce the new oral argument schedule by March 23, 2020.[15]
President Trump’s Arguments
President Trump argues that the Constitution’s “text, structure, and traditions”[16] grant complete immunity to sitting presidents from criminal proceedings, including immunity from grand jury subpoenas served on the President’s custodians, such as Mazars.[17] President Trump argues that, because the Constitution invests the entire “executive Power” of the United States in a single person,[18] the President is “the only person who is also a branch of government.”[19] This, coupled with a sitting president’s immense power over foreign and domestic affairs, including command the armed forces and the faithful execution of all federal laws,[20] requires presidential immunity from criminal proceedings.[21]
President Trump asserts that, constitutionally, the President “never sleeps” and “must be ready, at a moment’s notice, to do whatever it takes to preserve, protect, and defend the Constitution and the American people.”[22] Due to this immense power and responsibility, President Trump argues that his immunity from criminal proceedings is “necessarily implied.”[23] Furthermore, President Trump argues, the appropriate remedy for a president’s wrongdoing is the impeachment process,[24] which requires a conviction by the Senate before the president may be “subject to Indictment, Trial, Judgment and Punishment, according to Law.”[25]
Moreover, President Trump insists that presidential immunity is particularly forceful in relation to state criminal proceedings due to the Constitution’s Supremacy Clause, which makes federal law the “supreme law of the land.”[26] The Supreme Court held in McCulloch v. Maryland[27] that states cannot “defeat the legitimate operations” of the federal government,[28] and President Trump argues that the Supremacy Clause, “both independent an in conjunction with Article II,”[29] immunizes sitting presidents from state criminal prosecutions.[30] To allow otherwise, President Trump asserts, “would be disastrous”[31] because over 2,300 prosecutor offices, many of which have politically elected officials, could embroil the sitting president in criminal proceedings.[32]
Finally, President Trump argues (1) that the N.Y.D.A.’s subpoena implicates presidential immunity from criminal proceedings despite merely requesting records because it will “distract, burden, and stigmatize” the President in a variety of ways,[33] and (2) that serving Mazars with a subpoena implicates presidential immunity because, despite service on the President’s accountants rather than the President, the subpoena still targets President Trump.[34]
Alternatively, President Trump argues that, even if presidential immunity is not absolute, the N.Y.D.A. has not demonstrated a heightened need for President Trump’s financial records.[35] Under United States v. Nixon,[36] a prosecutor must show a “demonstrated, specific need” for the President’s requested material,[37] which requires the subpoena’s requested information to be “directly relevant to the issues expected to be central to the case.”[38] President Trump argues that the N.Y.D.A. subpoena did not meet this burden because it demands almost a decade’s worth of financial documents, most of which predate Trump’s presidential campaign and involve myriad transactions that have nothing to do with the state of New York.[39] Allowing such overbroad requests for information against sitting presidents, President Trump asserts, would put them at the “mercy of the State for protection against sweeping prosecutorial subpoenas for . . . personal documents.”[40]
The N.Y.D.A.’s Arguments
The N.Y.D.A. argues that the Constitution does not provide categorical immunity to the President for criminal proceedings.[41] Instead, the Constitution only grants the President such immunity regarding the President’s official acts, but does not “extend[] beyond the scope of any action taken in an official capacity.”[42] As such, the N.Y.D.A. asserts, President Trump may invoke immunity regarding official communications but may not do so regarding discussions with private citizens about private matters.[43] The N.Y.D.A. similarly argues that the Supremacy Clause only prevents states from interfering with the President’s (and other federal officials’) official acts, [44] insisting that states may still “regulate the conduct of the President as a private citizen.”[45]
Furthermore, the N.Y.D.A. asserts that the risk of a grand jury subpoena interfering with the President’s official functions does not warrant categorical immunity.[46] As evidence, the N.Y.D.A. quoted Chief Justice John Marshall, who oversaw the trial of Aaron Burr: “That the president of the United States may be subpoenaed, and examined as a witness, and required to produce any paper in his possession, is not controverted.”[47] Further, the N.Y.D.A. argues that the Supreme Court endorsed John Marshall’s language in Nixon v. Fitzgerald[48] and Clinton v. Jones,[49] both of which rejected absolute presidential immunity in the context of federal prosecutions.[50]
Additionally, the N.Y.D.A. argues that President Trump’s concerns that, absent absolute presidential immunity, a sitting President may be embroiled in needless and politically motivated prosecutions is overstated, as compliance with a subpoena does not prevent the President from accomplishing his duties and/or restrain his liberty.[51] The N.Y.D.A. further notes that President Trump failed to identify any historical examples of state prosecutorial abuse/harassment against sitting presidents and thus questions the necessity for absolute presidential immunity on such grounds.[52] Moreover, while the N.Y.D.A. admits that sitting presidents are immune from criminal trial and imprisonment, it argues that such immunities do not include gathering evidence, which is the aim of the N.Y.D.A.’s grand jury subpoena.[53] Similarly, the N.Y.D.A. claims that the President’s compliance with grand jury subpoenas would be non-stigmatizing because such procedures do not signal any wrongdoing but instead signal merely that an investigation is underway.[54]
Finally, in response to President Trump’s heightened “specific need” requirement for organizations seeking information from the President, the N.Y.D.A. argues that only requests for confidential or privileged information require such a standard.[55] The N.Y.D.A. acknowledges that such a showing for specific need would be necessary if the N.Y.D.A. sought confidential information,[56] but argues that such a standard is unnecessary when seeking information beyond the scope of the President’s official conduct.[57] Similarly, the N.Y.D.A. acknowledges that President Trump could prevent its subpoena by showing that the N.Y.D.A.’s subpoena actually hindered President Trump’s ability to perform his official functions or that the subpoena amounted to bad faith harassment.[58] The N.Y.D.A. asserts, however, that President Trump has failed to demonstrate that his compliance with the subpoena would hinder his official performance or that the subpoena amounted to bad faith harassment.[59]
Conclusion
In deciding this case, the Supreme Court of the United States will have to consider the role of the United States President and clarify the bounds of presidential immunity. The Court’s decision, regardless of whether it favors President Trump or the N.Y.D.A., will have significant consequences.
[1] Johnathan Ernst, F.B.I. Raids Office of Trump’s Longtime Lawyer Michael Cohen; Trump Calls It ‘Disgraceful’, N.Y. Times (Apr. 9, 2018), https://www.nytimes.com/2018/04/09/us/politics/fbi-raids-office-of-trumps-longtime-lawyer-michael-cohen.html.
[2] Id.
[3] Brief for Respondent at 4, Trump v. Vance (Feb. 26, 2020) (No. 19-635), https://www.supremecourt.gov/DocketPDF/19/19-635/134172/20200226111950479_19-635%20Brief%20of%20Respondent.pdf.
[4] Brief for Petitioner at 7, Trump v. Vance (Jan. 27, 2020) (No. 19-635), https://www.supremecourt.gov/DocketPDF/19/19-635/130085/20200127185825281_19-635%20Brief%20for%20Petitioner.pdf; Brief for Respondent, supra note 3, at 4.
[5] Brief for Petitioner, supra note 4, at 7; Brief for Respondent, supra note 3, at 4.
[6] Brief for Petitioner, supra note 4, at 7.
[7] Brief for Petitioner, supra note 4, at 8; Brief for Respondent, supra note 3, at 4.
[8] Brief for Petitioner, supra note 4, at 9; Brief for Respondent, supra note 3, at 5.
[9] Brief for Petitioner, supra note 4, at 13; Brief for Respondent, supra note 3, at 7.
[10] Brief for Respondent, supra note 3, at 7.
[11] Brief for Petitioner, supra note 4, at 14; Brief for Respondent, supra note 3, at 7.
[12] Trump v. Vance, SCOTUSblog, https://www.scotusblog.com/case-files/cases/trump-v-vance/ (last visited March 14, 2020).
[13] Id.
[14] John Kruzel, Supreme Court Postpones Oral Arguments Amid Coronavirus Pandemic, The Hill (March 16, 2020, 10:41 AM), https://thehill.com/regulation/court-battles/487774-supreme-court-postpones-oral-arguments-amid-coronavirus-pandemic.
[15] Justices Postpone March Argument Session, SCOTUSblog (March 16, 2020, 11:06 AM), https://www.scotusblog.com/2020/03/justices-postpone-march-argument-session/.
[16] Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 218 (1995). Despite citing this case in relation to presidential immunity, Plaut is a case involving the constitutionality of § 27A(b) of the 1934 Securities Exchange Act. Id. at 213. The only discussion of immunity in Plaut involves the immunity of judicial decisions from legislative abrogation. Id. at 230.
[17] Brief for Petitioner, supra note 4, at 20.
[18] U.S. Const. art. II, § 1, cl. 1.
[19] Jay S. Bybee, Who Executes the Executioner? Impeachment, 2 NEXUS 53, 60 (1997).
[20] U.S. Const. art. II, § 2; Free Enter. Fund v. PCAOB, 561 U.S. 477, 493 (2010).
[21] Brief for Petitioner, supra note 4, at 20.
[22] Akhil Reed Amar & Neal Kumar Katyal, Executive Privileges and Immunities: The Nixon and Clinton Cases, 108 Harv. L. Rev. 701, 713 (1995).
[23] Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982).
[24] U.S. Const. art. II, §§ 1, 4.
[25] U.S. Const. art. I, § 3.
[26] U.S. Const. art. VI.
[27] 17 U.S. 316, 427 (1819).
[28] Id.
[29] Brief for Petitioner, supra note 4, at 25.
[30] Id.
[31] Id.
[32] Id. at 26.
[33] Id. at 29.
[34] Id. at 36.
[35] Id. at 45.
[36] 418 U.S. 683, 713 (1974).
[37] Id.
[38] In re Sealed Case, 121 F.3d 729, 754-55 (D.C. Cir. 1997).
[39] Brief for Petitioner, supra note 4, at 48.
[40] Id. at 47.
[41] Brief for Respondent, supra note 3, at 13.
[42] Clinton v. Jones, 520 U.S. 681, 694 (1997); see also id. at 699 (“[The] doctrine of separation of powers is concerned with the allocation of official power among the three coequal branches of our Government.”).
[43] Brief for Respondent, supra note 3, at 14.
[44] In re Tarble, 80 U.S. 397, 409-10 (1871) (States cannot “interfere[] with” or “control[]” acts “under the authority … of the United States”).
[45] Brief for Respondent, supra note 3, at 15.
[46] Id. at 17.
[47] United States v. Burr, 25 F. Cas. 187, 191 (C.C.D. Va. 1807).
[48] Nixon, 418 U.S. at 706.
[49] Clinton v. Jones, 520 U.S. 681, 704 (1997).
[50] It is important to remember that the N.Y.D.A. is an organization of the state of New York. As such, the N.Y.D.A.’s investigation is not a federal investigation and is therefore distinguishable from the investigations in Nixon and Clinton.
[51] Brief for Respondent, supra note 3, at 24.
[52] Id. at 37.
[53] Id. at 24.
[54] Id. at 28.
[55] Nixon, 418 U.S. 703, 713.
[56] Brief for Respondent, supra note 3, at 41.
[57] Id. at 43.
[58] Id. at 47–48.
[59] Id. at 48.
