AMERICA’S SUPREME COURT issued a Solomonic pair of rulings on July 9th. By a 7-2 majority, the justices declared that Cyrus Vance, a New York prosecutor, may see details of President Donald Trump’s finances and his tax returns—something Mr Trump has long resisted. Within months, a grand jury may view documents related to allegations that (among other things) Mr Trump paid off paramours. But by the same margin, however, the court ruled that congressional Democrats may not immediately gain access to years of records from Mr Trump’s accountants and bankers.
So the public will remain in the dark for now—and probably until after the election in November. But that has not consoled Mr Trump one jot. After the rulings were handed down, the president raged. “Courts in the past have given ‘broad deference’” to presidents, he tweeted. “BUT NOT ME!”
In fact, two of his predecessors have suffered similar judgments to that in Trump v Vance, the New York case. In 1974 the Supreme Court told Richard Nixon to hand over the Watergate tapes, and in 1997 it ordered Bill Clinton to respond to allegations of sexual harassment. Rejecting Mr Trump’s claim to absolute immunity to criminal investigation while in office—which his lawyer once said would shield him even if he shot someone on Fifth Avenue in Manhattan—Chief Justice John Roberts wrote that presidents are not above the law. “[N]o citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.”
The New York grand jury is investigating Mr Trump’s alleged hush-money payoffs to an adult-film star and a Playboy model in October 2016. Vance holds that Mr Trump has no blanket protection preventing the release to that jury of his taxes and financial records from Mazars USA, his accountant. Nor may Mr Trump, or any president, demand a “heightened standard of need” when a prosecutor requests evidence. The guard “lies where it always has,” Chief Justice Roberts wrote, in “the conduct of a court applying established legal and constitutional principles to individual subpoenas in a manner that preserves both the independence of the executive and the integrity of the criminal justice system”. A president may argue, for example, that complying with a specific subpoena would “impede his constitutional duties” or that prosecutors are operating in bad faith. But they may not simply refuse to comply, or ask their accountants to balk on their behalf.
Mr Vance may not see the records just yet. Jay Sekulow, Mr Trump’s lawyer, says he will raise further “constitutional and legal issues in the lower courts”—presumably taking up the ruling’s invitation to pursue more targeted challenges against the subpoena. Nevertheless, according to Stephen Vladeck, a law professor at the University of Texas, Mr Trump’s grounds for further litigation “will be very weak”. It seems that Mr Sekulow can realistically hope for only a moderate delay before the records reach the grand jury. Mr Vance has been waiting for nearly a year. Another few months will not matter much to his investigation.
But timing is critical in Trump v Mazars, the companion ruling that is best seen as a temporary reprieve for Mr Trump. Chief Justice Roberts wrote this one, too: a “remand” back to lower courts to conduct a more measured examination of subpoenas issued by three House of Representatives committees last spring. The terse majority opinion rejected Mr Trump’s argument that Congress must show a “demonstrably critical” need when it issues a subpoena for a president’s personal information. Although such a high standard is appropriate for official documents, over which presidents may claim executive privilege, the court refused to “transplant that protection root and branch to…nonprivileged, private information”.
At the same time, however, the majority found little to recommend the standard urged by the House—which its lawyer had a terrible time articulating in oral argument in May. The House’s view leaves “essentially no limits on the congressional power to subpoena the president’s personal records”, the majority held, and opens the door to harassment of the executive by Congress.
After his pox-on-both-your-houses analysis, Chief Justice Roberts outlined a few considerations the lower courts should apply when they give the subpoenas a fresh look. The requested information must match Congress’s legislative aims closely. The president may not be used as a mere “case study” for lawmaking, as a committee had put it. The requests cannot be too broad and are more likely to pass muster if detailed evidence lies behind the purported legislative purpose. Courts should be sensitive to burdens on presidents, especially in light of the fact that Congress may try to “use subpoenas for institutional advantage”.
The criteria outlined in Mazars suggest that the House Financial Services Committee may ultimately fail to gain access to the records it seeks from Deutsche Bank and Capital One (Mr Trump’s lenders); its subpoena was only tenuously tied to strengthening money-laundering laws. The Oversight Committee’s subpoena may similarly come up short: its aim is to expose Mr Trump’s emoluments-clause violations and investigate the hush-money allegations. But the Intelligence Committee’s subpoena—looking into “whether foreign actors have financial leverage over President Trump” and whether new laws or shored-up intelligence are necessary to combat the threat—seems to tick all the boxes Chief Justice Roberts described.
However the lower-court analysis goes—and that depends heavily on which judges conduct it—the renewed litigation will take months to conclude. Mr Trump’s long-shrouded tax and financial documents are highly unlikely to be thrown into the spotlight in the months before November’s election. The American people will not, therefore, be privy to their president’s tax returns and balance-sheets when they go to the polls. The loss in Trump v Vance may one day spell trouble for Mr Trump, but will not, it seems, further dampen his faltering re-election prospects.