Trump v. Vance and the Debate Over Executive Privileges
The privileges that come with the role of the Executive have been hotly debated over time. In Locke’s Second Treatise on Government, he discusses the concept of the executive prerogative. This is the idea that, at times, the legislature does not have the capacity to weigh in on decisions for government. In these times, particularly characterized by crisis, the Executive may exercise executive prerogative, otherwise known as “good judgment.” Locke expressed his belief that the Executive is qualified to take action outside of the bounds of the laws if it’s in society’s best interest. Although in theory the concept of the executive prerogative sounds reasonable, it does not hold the same validity in the fundamentals of American government as Locke may have envisioned. Article VI of the United States Constitution states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof […] shall be the supreme Law of the Land,” meaning that even the President is not above the law.
The Supreme Court case Trump v. Vance serves as a modern-day example of the debate over executive privileges. In 2019, the New York County District Attorney served a subpoena to Mazars USA LLP, the personal accounting firm of President Trump, seeking his financial business records. However, President Trump sued the District Attorney, asserting that as the Executive, he has “absolute immunity” from state criminal proceedings. The case posed an important question that would indicate the President’s ability to evade the Constitutional standards that the rest of society is held to: does the Constitution allow a non-Federal prosecutor to subpoena a third-party for the financial records of a sitting President, over which the President has no claim of executive privilege?
To fully understand the context of this case, we must understand the precedents set by relevant cases. In 1807, the Court ruled on United States v. Burr. In this case, Justice John Marshall granted Aaron Burr’s request for a subpoena for President Thomas Jefferson, finding that the President does not possess any provisions that allow him to opt out of the “Sixth Amendment’s guarantee [which] extended to the production of papers,” requiring those accused of any charges to be allowed to obtain witnesses to help their defense. President Jefferson attempted to evade the subpoena by arguing that his “duties as chief magistrate demand his whole time for national objects.” Ultimately, however, the Court found that this reasoning was not sufficient to allow the President to be exempt from subpoenas. Justice Marshall reasoned that “[T]he propriety of introducing any papers [would] depend on the character of the paper, not the character of the person who holds it.”
President Trump argued that the requirements for serving the subpoena to a sitting President have to satisfy a heightened necessity. However, the Court has made it clear that if a State grand jury wants to issue a subpoena, they do not have to prove a heightened need standard. There are three reasons for this. First, “Burr teaches that, with regard to private papers, a President stands in ‘nearly the same situation with any other individual’.”It is important to note that the papers in question for this case are private, not pertaining to the President’s executive communications, reducing the potential for protection against the subpoena. The second reason is that “there has been no showing here that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions.” While President Trump argued that the subpoena would serve as a distraction, the “Court had expressly rejected immunity based on distraction alone […] in Clinton v. Jones,” setting a precedent that applied to this case as well. Third, the public has a vested interest in accessing this evidence regarding the President.
In 1974, the Supreme Court case United States v. Nixon questioned whether the President could be forced to disclose official communications that were taped within the Oval Office. To defend himself, President Nixon claimed that he had executive privilege, allowing his Presidential communications to remain confidential. However, once again, the Court ruled in favor of releasing the information to the public. In this case, the “Court refused to quash the subpoena because there was a ‘demonstrated, specific need for [the] evidence in a pending criminal trial,’” which outweighed the President’s right to supposed executive privilege. Following both of these Court Cases, the Supreme Court has continually reaffirmed that Federal criminal subpoenas do not significantly inhibit the Executive’s ability to carry out his or her duties, and therefore, the subpoenas have been historically granted as constitutional.
The Clinton v. Jones case in 1997 entered into slightly different territory. In this case, the President tried to justify his immunity from subpoena by emphasizing that the subpoena called upon private acts, unrelated to Presidential activity. This was a reason for why the subpoena may be seen as distracting or intrusive into his Presidency in a way that may differ from the United States v. Nixon and United States v. Burr cases that called upon information related to Executive duties. However, the Court clarified that they were not concerned with mere distraction, but “the distortion of the Executive’s ‘decisionmaking process,’” and that “The prospect that a President may become ‘preoccupied by pending litigation’ did not ordinarily implicate constitutional concerns.” Since a subpoena on its own does not have this characteristic of hampering decision making, in both the Clinton and the Trump cases, the Court upheld the enforcement of the subpoena.
In the case Trump v. Vance, Justice Roberts wrote the majority opinion, which was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan presented the majority opinion. The decision begins with the observation that, for many years, the Court has repeatedly held that the President is not above the requirement to comply with a subpoena in Federal criminal proceedings. One major way in which President Trump’s case varies is that his opposition was to a State criminal subpoena rather than a Federal one. However, President Trump failed to prove that complying with the State criminal subpoena would serve as a significant hindrance to his ability to carry out Executive responsibilities. Trump also attempted to argue, “the Supremacy Clause gives a sitting President absolute immunity from state criminal subpoenas because compliance with such subpoenas would categorically impair the performance of his Article II functions,” and potentially create stigma against him among the American people. The Court countered by indicating that this grievance was not sufficient in that there is nothing about a President complying with a subpoena, a normal citizen’s duty, that makes him or her the target of negative attitudes or actions.
Next, the Court looked towards President Trump’s claim that there should be a heightened standard of need for the subpoena. They referenced the Burr decision as an example in which the Court had solidified that the President has the same responsibility to provide private papers as any other citizen. Aside from this simple idea of equality of the people and the Executive under the law, the Court indicated that “absent a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence.”
Both Justice Brett Kavanaugh and Justice Neil Gorsuch authored a concurring opinion which accepted most of the terms presented by the majority. They added the caveat that the Court should follow the section of the United States v. Nixon case which articulated the “‘demonstrated, specific need’ standard [which] is a tried-and-true test that accommodates both the interests of the criminal process and the Article II interests of the Presidency.” Their reasoning included protecting the Executive from the “use [of] the criminal process and issue subpoenas in a way that interferes with the President’s duties, through harassment or diversion.”
Justice Clarence Thomas and Justice Samuel Alito provided different dissenting opinions. In Justice Thomas’ dissent, he stated that, although he did not believe in President Trump’s claim of absolute immunity from the grand jury subpoena, he felt that another question needed to be answered. He agreed with “the majority that the President is not entitled to absolute immunity from issuance of the subpoena. But he may be entitled to relief against its enforcement.” Justice Alito asserted his belief that the President should be allowed greater Constitutional protections against state criminal proceedings than the average citizen, bringing into question the validity of the Supremacy Clause in this case. He has the unique opinion that “The Presidency deserves greater protection. Thus, in a case like this one, a prosecutor should be required (1) to provide at least a general description of the possible offenses that are under investigation, (2) to outline how the subpoenaed records relate to those offenses, and (3) to explain why it is important that the records be produced and why it is necessary for production to occur while the President is still in office.” All of these provisions would reach far beyond the established protections for a President facing a subpoena in the way that the Supreme Court has ruled on it in the past.
It is evident that Trump v. Vance serves as another link into our compounding understanding of the privileges associated with being an Executive. However, using Trump v. Vance as a mouthpiece, the Supreme Court’s rulings have been clear, the President is not above the law.
