Will Supreme Court Shield President Trump’s Tax Returns?

The U. S. Supreme Court will consider President Donald Trump’s appeal to determine whether the District Attorney for the County of New York can enforce a grand jury subpoena seeking ten years’ worth of the President’s financial papers and his tax returns.

The Second Circuit Court of Appeals rejected the President’s argument that U.S. presidents are immune from investigation while in office. It ordered an accounting firm, Mazars USA, to comply with the subpoena.

Facts of Trump v. Vance

The District Attorney of New York County Cyrus Vance has issued a grand jury subpoena to Mazars USA LLP seeking “a wide variety of financial records dating from January 1, 2011 to the present and relating to the President, the Trump Organization, and several related entities” as part of an ongoing state grand-jury proceeding.

On September 19, 2019, the President suit in the United States District Court for the Southern District of New York. The President’s complaint asserted a broad presidential immunity from state criminal process and sought injunctive relief to restrain enforcement of the subpoena. The district court declined to exercise jurisdiction and dismissed the case under the doctrine of Younger v. Harris, 401 U.S. 37 (1971).

Second Circuit’s Decision

The Second Circuit agreed that Younger abstention does not apply to the circumstances of the case. However, it also held that the President was unlikely to succeed on the merits of his immunity claim.

“After reviewing historical and legal precedent, we conclude only that presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non‐privileged material, even when the subject matter under investigation pertains to the President,” the Second Circuit held in Trump v. Vance.

In reaching its decision, the appeals court emphasized that presidents have previously been ordered to give deposition testimony or provide materials in response to subpoenas. It also cited the Supreme Court’s decision in United States v. Nixon, in which the Court held that that “neither the doctrine of separation of powers, nor the need for confidentiality of high‐level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

“The President has not persuasively explained why, if executive privilege did not preclude enforcement of the subpoena issued in [United States v.]Nixon, the Mazars subpoena must be enjoined despite seeking no privileged information and bearing no relation to the President’s performance of his official functions,” Chief Judge Robert Katzmann wrote. “We are not faced, in this case, with the President’s arrest or imprisonment, or with an order compelling him to attend court at a particular time or place, or, indeed, with an order that compels the President himself to do anything. The subpoena at issue is directed not to the President, but to his accountants; compliance does not require the President to do anything at all.”

The Second Circuit concluded its opinion by highlighting that it was only ruling on the specific issues before it. Judge Katzmann wrote:

We emphasize again the narrowness of the issue before us. This appeal does not require us to consider whether the President is immune from indictment and prosecution while in office, nor to consider whether the President may lawfully be ordered to produce documents for use in a state criminal proceeding. We accordingly do not address those issues. The only question before us is whether a state may lawfully demand production by a third party of the President’s personal financial records for use in a grand jury investigation while the President is in office.

Issue Before the Supreme Court

In his petition for certiorari, President Trump asked the Supreme Court to answer the following question:

The District Attorney for the County of New York is conducting a criminal investigation that, by his own admission, targets the President of the United States for possible indictment and prosecution during his term in office. As part of that investigation, he served a grand-jury subpoena on a custodian of the President’s personal records, demanding production of nearly ten years’ worth of the President’s financial papers and his tax returns. That subpoena is the combination—almost a word-for-word copy—of two subpoenas issued by committees of Congress for these same papers. The Second Circuit rejected the President’s claim of immunity and ordered compliance with the subpoena.

The question presented is: Whether this subpoena violates Article II and the Supremacy Clause of the United States Constitution.

In urging the justices to consider his case, President Trump asserts that it raises novel and serious claims. “The Court’s previous immunity cases identified the key elements of this case—targeting a President for criminal investigation through coercive process issued by a local official—as an unresolved issue, and carefully reserved the question,” the petition states. “The Court should decide it now.”

President Trump also argues that the Second Circuit’s decision is wrong. “There has been broad bipartisan agreement, for decades if not centuries, that a sitting President cannot be subjected to criminal proceedings. That consensus follows from the Constitution’s text, history, and structure, as well as from precedent,” the petition states. “The Framers recognized the clear need for a strong Chief Executive, and they fashioned a process for investigating and removing him in a manner that would embody the will of the people. A lone county prosecutor cannot circumvent this arrangement.” The earliest the Court could consider the petition is December 13, 2019. Please check back for updates.