Federal Friction and Federalism: President Trump’s Tax Returns Cases

Over the past few months, the U.S. House of Representatives and the Manhattan District Attorney have issued subpoenas for President Trump’s personal and corporate tax returns. Trump has fought the subpoenas vigourously, filing lawsuits to block the release of his tax returns and arguing that the subpoenas are unconstitutional. Those lawsuits have percolated through the federal courts; the D.C. Circuit Court of Appeals upheld the congressional subpoena, and the Second Circuit Court of Appeals upheld the District Attorney’s subpoena. Now Trump has appealed both decisions. Both lawsuits now sit before the Supreme Court and await action from the nine Justices. This article gives a comprehensive overview of both of Trump’s tax returns cases. I analyze the D.C. Circuit and Second Circuit’s opinions, issued before Trump’s appeal to the Supreme Court. I assess each parties’ arguments as they are now laid out in briefs filed with the Supreme Court. I lay out timelines for both cases and explain what the Supreme Court might do and when. Finally, I give my own thoughts on some of the critical legal questions the cases present.

The House Subpoena

Background

In the wake of the Watergate scandal, Congress enacted the Ethics in Government Act of 1978 (EGA) (5. U.S.C. app. §101, et seq.). §§ 101(a) and 102(b) require the president to compile a report that lists (1) all income sources and amounts, including gifts and real estate transactions, that the president received during the previous calendar year (not including government salary); (2) all property interests, investment interests, and deposits to personal savings accounts during the previous calendar year; (3) all loans, mortgages, and liabilities owed to creditors during the previous calendar year; (4) all non-federal employment positions held in the previous calendar year; and (5) all contracts regarding future employment, leaves of absence during term in office, and continuing payments made by a previous employer. §102 further requires the president to compile this report each year he/she is in office. §103 directs the president to file his/her annual report with the Office of Government Ethics (OGE), a federal agency within the Executive Branch, which then makes the report public.

Last year, the OGE announced it had noticed an error in President Trump’s 2017 financial disclosure report (which covered the 2016 calendar year). Specifically, in 2016, a “third party” received from Trump’s personal attorney, Michael Cohen, a payment that should have been listed on the financial disclosure report as a “reportable liability” under the EGA. The following year, Trump’s 2018 report indicated he had reimbursed Cohen for the payment. However, neither report listed Cohen’s payment to the third party as a “reportable liability.” The OGE sent its concern to the Deputy Attorney General in the U.S. Department of Justice.

In February 2019, Cohen appeared before the U.S. House of Representatives Committee on Oversight and Reform. He testified that, based on his personal experience working for the President, he believed Trump had “inflated his total assets when it served his purposes” and, in turn, “deflated his assets” at other times.

In light of these concerns, on April 15 the Committee—chaired by the late Elijah E. Cummings (D-Md.)—subpoenaed Mazars USA, LLP, a private, independent global accounting firm with whom Trump has filed his personal and corporate taxes. The subpoena requested, among other things, “[a]ll statements of financial condition, annual statements, periodic financial reports, and independent auditors’ reports[,]” from 2011–2018, that were “prepared, compiled, reviewed, or audited by Mazars.” It requested Trump’s private financial records as well as records from several of his businesses. The subpoena ordered Mazars to turn over the documents by April 29.

On April 22, however, Trump sued the Committee and Mazars in the U.S. District Court for the District of Columbia. Trump argued the Committee’s subpoena was invalid and sought a permanent injunction against it. The parties mutually agreed not to enforce the subpoena until after the district court issued its decision.

On May 20, that decision came. The district court ruled against Trump, holding that the reasons the Committee offered for issuing its subpoena were valid and directing Mazars to comply with the subpoena.

Shortly thereafter, Trump appealed the decision to the U.S. Court of Appeals for the D.C. Circuit. Again, the parties mutually agreed not to enforce the subpoena until after disposition from the appeals court. A three-judge panel was assigned to hear and decide the appeal: Judges David S. Tatel, Patricia A. Millett, and Neomi Rao. The panel heard oral argument on July 12 and issued its decision on October 11.

The D.C. Circuit Decision

By a vote of 2:1, the D.C. Circuit affirmed. Judges Tatel and Millett made up the majority, and Judge Rao dissented. Writing for the majority, Tatel recapped how the case came before the court before discussing the legality of congressional subpoenas throughout our country’s history.

History of Congressional Subpoenas:

The first congressional subpoena to reach the Supreme Court was in Kilbourn v. Thompson, 103 U.S. 168 (1881). There, the Court struck down a House subpoena for a firm’s bankruptcy filings because “no valid legislation” could arise from the House’s investigation. All the House was doing was intruding upon the role of the Judiciary, which would have the sole responsibility to decide whether the firm’s bankruptcy filings had any illegal irregularities. Since then, however, Congress has had better luck. In McGrain v. Daugherty, 273 U.S. 135 (1927), and Sinclair v. United States, 279 U.S. 263 (1929), the Supreme Court upheld two Senate subpoenas served on the brother of the Attorney General and the president of an oil company, respectively. In Barenblatt v. United States, 360 U.S. 109 (1959)—a case usually known for its First Amendment implications—the Court made clear the standard for a Congressional subpoena: “Congress may not constitutionally require an individual to disclose his . . . private affairs except in relation to” a “valid legislative purpose” (360 U.S., at 127).

This is all well and good in the land of ordinary congressional subpoenas. But what about a congressional subpoena that implicates the president? Well, while the body of law here isn’t as extensive, what little there is speaks volumes. Only one congressional subpoena to the president has meandered through the federal courts. In 1973, the Senate Select Committee on Presidential Campaign Activities (the “Watergate Committee”) subpoenaed “taped recordings of five conversations . . . discussing alleged criminal acts” from President Richard Nixon. Nixon refused to comply with the subpoena. Asserting executive privilege over the tapes, Nixon said he could not make them public because of the “confidentiality essential to the functioning of the Office of the President.” To an extent, the D.C. Circuit agreed in Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974) (this particular case didn’t make its way to the Supreme Court). To overcome a presumptive recognition of presidential immunity, the D.C. Circuit said, Congress would have to make an “appropriate showing of public need,” which the Watergate Committee had failed to do. (Nixon, later faced with a similar subpoena from Special Prosecutor Archibald Cox, would lose before the Supreme Court in United States v. Nixon, 418 U.S. 683 (1974), while attempting to use the same argument.) But Tatel noted that while the Watergate Committee lost, the case “strongly implies that Presidents enjoy no blanket immunity from congressional subpoenas.”

Validity of the Committee’s Subpoena:

In all, though the body of law in this domain is scant, there emerge a number of factors that govern the legality of congressional subpoenas:

  1. The power of Congress to investigate is only as extensive as its power to legislate (see Quinn United States, 349 U.S. 155, 160 (1955)). Therefore, when Congress exercises its power to investigate (e.g., through a subpoena), it cannot “usurp the other branches’ constitutionally designated functions” or “violate individuals’ constitutionally protected rights,” Tatel remarked.
  2. That said, Congress’ constitutional job is to legislate, so its power to do so is virtually unfettered. As such, Congress’ power to investigate is cabined only when it investigates a matter on which “no Constitutional statute may be enacted.”
  3. Finally, if we narrow the discussion to congressional committees, a committee can serve a subpoena if it is “calculated to” “materially aid[]” its investigation (McGrain, 273 U.S., at 177). “Even a valid legislative purpose cannot justify a subpoena demanding irrelevant material,” said Tatel.

With these factors in mind, Tatel turned to Trump’s opening two arguments: first, that the House did not have the constitutional authority to delegate its investigative power to the Oversight and Reform Committee; and second, that even if the House did have such authority, the Committee did not have the authority to issue its subpoena to Mazars. Tatel addressed the arguments in reverse order.

Right off the bat, Tatel made a critical distinction: the panel does not have to decide whether a congressional committee can serve a subpoena on a president because that’s not what happened here. The Oversight and Reform Committee subpoenaed Mazars—not President Trump—for Trump’s tax returns. It comes as no surprise, then, that Trump did not try to claim executive privilege to defeat the subpoena; Mazars does not have that luxury. As such, Tatel said, the question is whether the Committee’s subpoena to Mazars is “related to, and in furtherance of, a legitimate task of the Congress” (Watkins v. United States, 354 U.S. 178, 187 (1957)).

Trump argued that the answer is “no” on a number of grounds. First, Trump claimed that the Committee is crossing into law enforcement and wielding power reserved to the Executive and Judicial branches under the Constitution. Remember, this was the kind of congressional subpoena the Supreme Court struck down in Kilbourn. But Tatel responded that the Committee isn’t crossing a line, and there is a large amount of evidence in the public record to support that conclusion. In an April 12 memo, Chairman Cummings laid out four legislative questions that he felt the Committee’s subpoena would help answer: (1) whether Trump has engaged in illegal financial activity before or during his Presidency; (2) whether Trump has “undisclosed conflicts of [financial] interest” that may impede his ability to “make impartial policy decisions”; (3) whether Trump has broken the Emoluments Clause of the Constitution; and (4) whether Trump has been accurate in reporting his finances to the OGE. In addition, the House has proposed or passed several pieces of legislation related to the Committee’s inquiry, specifically concerning a President’s financial disclosures. These include H.R. 1, §8012; H.R. 706, §222; and H.R. 745, §3.

Given this bevy of indicia, Tatel said, it’s clear that the Committee—and Congress—has a legislative purpose behind the subpoena. But Trump next argued that this is simply a masquerade, a mask behind which the Committee’s actual purpose is hiding. He zeroed in on the first legislative question Chairman Cummings offered in the April 12 memo—to determine whether Trump has engaged in illicit financial activity before or during his term in office. Trump contended this is an “avowed” law-enforcement purpose for the subpoena, and hence the Committee is encroaching on powers ascribed to the other branches. But even if such an investigation cannot also serve a valid, legislative purpose, Tatel replied, “an interest in past illegality can be wholly consistent with an intent to enact remedial legislation.” In fact, the Supreme Court has upheld two similar instances of such congressional interest in Hutcheson v. United States, 369 U.S. 599 (1962), and Sinclair.

As a backup, Trump also tried to convince the panel that there is a sneakier, darker motive behind the subpoena, one that leads the Committee into an arbitrary and unconstitutional field of inquiry. “If this subpoena is valid,” Trump mused, “then Congress is free to investigate every detail of a President’s personal life, with endless subpoenas to his accountants, bankers, lawyers, doctors, family, friends, and anyone else with information that a committee finds interesting.”

But Tatel found this contention wanting and unexceptional. It’s true that Congress cannot make “unauthorized, arbitrary or unreasonable inquiries” into someone’s “personal and private affairs” (Sinclair, 279 U.S., at 292). But Congress certainly can “require pertinent disclosures in aid of its . . . constitutional power”—especially when the affairs giving rise to that congressional inquiry are “matter[s] of [public] concern” and are subject to remedial legislation (Sinclair, at 294–295). Applying this rationale here, it was “undoubted[]” to Tatel that determining whether current financial disclosure laws are effective on the President is both “in aid of [Congress’] . . . constitutional power” and is a “matter of [public] concern.”

Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton:

Trump next shifted gears and argued the Committee’s subpoena violates two Supreme Court precedents, Powell v. McCormack, 395 U.S. 486 (1969), and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995). Powell and Thornton concluded that congressional statutes that add to the Constitution’s list of qualifications for serving as president are presumptively invalid. Now, let’s assume (as Tatel did) that enforcement of the Committee’s subpoena aids Congress in its ability to pass financial disclosure legislation in the future, and thus the subpoena has a valid legislative purpose. Running with this argument, Trump argued such laws would create an additional qualification for serving as president, hence they would be presumptively unconstitutional, so enforcement of the subpoena is not serving a potentially valid legislative, and thus the subpoena is beyond the scope of Congress’ legislative authority.

I must say, that’s as novel an argument as it is contingent. At first glance, however, Tatel’s response seems thin. He replied, in effect, that statutes requiring financial disclosures do not establish another qualification for serving as president. If Tatel’s objection holds, he strikes down the first premise in Trump’s argument upon which each subsequent premise relies. But does it hold?

Tatel supported his objection on the following grounds: “Financial disclosure laws would not . . . prevent a ‘duly elected’ official from assuming office” (quoting Powell, 395 U.S., at 550), and they “do not add a term limit to ‘the exclusive qualifications set forth in the text of the Constitution’” (quoting Thornton, 514 U.S., at 827).

At first, I admittedly did not sign on to Tatel’s explanation. Suppose a future Congress enacts a financial disclosure law under which a presidential candidate must, in order to take office, disclose any and all financial transactions over $10 that he/she made during the previous calendar year. Isn’t this another qualification for the Presidency—that is, compliance with my financial disclosure law—in addition to the Constitution’s age, residency, etc., requirements? Put differently, wouldn’t my law “prevent a ‘duly elected’ official from assuming office” under Powell if he/she fails to comply? And suppose further that my law requires a sitting president to continue disclosing such transactions each year in office, or else he/she would be violating federal financial disclosure laws and shall be subject to impeachment proceedings. In the same way, doesn’t my law “add a term limit” to the Presidency’s qualifications, in that a president’s term is limited insofar as he/she fails to comply with the financial disclosure law during tenure? Moreover, couldn’t any attorney conversant in constitutional law challenge this hypothetical statute as unconstitutional under Art. II, §1, cl. 5? To look at it another way, consider Tatel’s next sentence: “In the end, laws requiring [financial] disclosure exclude precisely zero individuals from running for or serving as President; regardless of their financial holdings, all constitutionally eligible candidates may apply.” I agree that financial disclosure laws “exclude precisely zero individuals from running for . . . President.” But my hypothetical law would “exclude” individuals from “serving as President” if the individual declines to comply with the laws—wouldn’t they? And this would place an additional qualification for the Presidency, wouldn’t it? Indeed, “regardless of [individuals’] financial holdings” and regardless of whether individuals comply with my hypothetical law, “all constitutionally eligible candidates may apply.” But there is a difference in my made-up scenario between applying for the Presidency and serving as president, and that difference hinges on whether the presidential applicant abides by my hypothetical financial disclosure law. In all, then, it seems that Tatel actually doesn’t do the best job of rebutting Trump’s flimsy, premise-based argument.

Then it hit me. At the risk of sounding immodest, my concern would be appropriate—perhaps even dispositive—in a lawsuit down the road if such a law should ever go into effect. Similarly, the strength of Trump’s premise-based argument relies on the unconstitutionality of such a law, from which he gets the idea that the Committee’s subpoena serves no valid legislative purpose.

But Trump’s argument misinterprets the fundamental question here (and my concern misapplies it). In determining whether a congressional subpoena serves a valid legislative purpose, the question is “not whether constitutional legislation will be had.” The question is whether “legislation may be had” or “could be had” (quoting, respectively, Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 508 (1975) (emphasis added); McGrain, 273 U.S., at 177 (emphasis added)). Moreover, the constitutionality of such legislation has no bearing the subpoena-validity test, for the requirement is not that constitutional legislation may or could be had. Put differently, if the information obtained from a subpoena could aid a Congress in passing legislation, then that subpoena has just met the validity test—full stop. Whether or not that legislation is constitutional is a wholly separate matter, one that must be decided in a different context at a later date.

Recall Trump’s argument: that financial disclosure laws would create an additional qualification for the Presidency and are therefore unconstitutional. Thus, a subpoena in service of enacting such laws has no legislative purpose and is invalid. It should now be clear why Trump’s argument fails and why Tatel’s objection makes weight, light though it may seem. Trump’s argument relies on legislation that will happen, which misunderstands the test; and it drives home the unconstitutionality of such legislation, which is irrelevant to the test. Similarly, my concern rests on the unconstitutionality of that hypothetical legislation and likewise applies the test incorrectly. In other words, take Tatel’s concluding paragraph on this point: “In sum, we detect no inherent constitutional flaw in laws requiring Presidents to publicly disclose certain financial information. And that is enough. Without treading onto any other potentially fertile grounds from which constitutional legislation could flower, we conclude that given the constitutionally permissible options open to Congress in the field of financial disclosure, the challenged subpoena seeks ‘information about a subject on which legislation may be had’” (quoting Eastland, 421 U.S., at 508 (emphasis added)).

Relevancy of the Subpoena to the Committee’s Investigation:

Tatel then turned to another of Trump’s central arguments: that some of the documents requested in the Committee’s subpoena are irrelevant to the Committee’s investigation. The Supreme Court has expounded a number of “tests” for determining whether a congressional subpoena—or the documents it requests—are relevant to a committee’s investigation. See, e.g., McGrain, 273 U.S., at 177; Watkins, 354 U.S., at 206; and McPhaul v. United States, 364 U.S. 372, 381–82 (1960). Combining these tests, Tatel evinced their common theme: Congress may subpoena only that information which is “reasonably relevant” to its investigation (quoting McPhaul, 364 U.S., at 381–82).

To apply this test here, Tatel got into the subpoena itself and pondered whether each category of documents it requested is “reasonably relevant” to the Committee’s investigation. There were four such categories: (1) “statements of financial condition, annual statements, periodic financial reports, and independent auditors’ reports from 2014–2018 (“Accounting Records”); (2) “underlying, supporting, or source documents and records” from 2011–2018 (“Source Documents”); (3) “memoranda, notes, and communications” related to the first two categories (“Related Communications”); and (4) all related “engagement agreements or contracts” (“Engagement Agreements”). Tatel took each category in turn, considered Trump’s arguments as to why the documents in each particular category were irrelevant, and dismissed each one of them.

Per Chairman Cummings’ memos, the object of the Committee’s investigation is to determine whether Trump “accurately reported his finances to . . . federal entities” before and during his Presidency, as well as whether “reforms are necessary to address deficiencies with current laws, rules, and regulations.” So, Tatel said, the documents in the first category—Accounting Records—are plainly relevant to the Committee’s investigation.

As to the second category—Source Documents from 2011–2018—Trump argued that the documents created between 2011–2014 are irrelevant since the subpoena, if it seized those documents, would be stretching “back many years before the President was even a candidate for public office.” That’s true, replied Tatel; the EGA requires presidential candidates to disclose their financial information for the “preceding calendar year.” But it’s “beside the point:” all Congress has to do is amend the EGA in the future, based on the information obtained from the subpoena. This goes back to the discussion that a subpoena serves a valid legislative purpose when legislation may be had as a result of the subpoena. In other words, said Tatel, “Congress might . . . reasonably wonder whether the [EGA] needs an update, and even pre-candidacy documents from the President would shed light on that inquiry.”

Tatel then took the final two categories—Related Communications and Engagement Agreements—together. Trump argued the documents in both categories “have nothing to do with the financial statements the Committee says it needs.” But Tatel replied that all these categories require for relevancy is one document that furthers the objectives of the Committee’s investigation—not every document. This is precisely because the Committee has no way to know which documents in these categories will or will not provide assistance to the investigation. So, Tatel concluded, “[i]t is enough that the[se] categories of information sought are ‘reasonably relevant’ to the Committee’s legitimate legislative inquiry.”

The Committee’s Congressional Authority:

Trump still had one final argument up his sleeve. Even if the subpoena itself was valid, and even if the documents it sought were relevant to the Committee’s investigation, was the Committee “authorized [by the full House] to exact the information” it seeks in the subpoena (quoting Rumely, 345 U.S, at 42–43)? Trump argued “no,” asking Tatel to interpret the pertinent House rules narrowly instead of giving them a “normal reading” (which, at oral argument, he acknowledged would make the answer “yes”). But Tatel concluded the panel has “no need—and most importantly, no authority—to do so.”

Take it for yourself: read “normally” the following rules: “Each committee may conduct at any time such investigations and studies as it considers necessary or appropriate in the exercise of its responsibilities” (House Rules and Manual, 115th Cong., Rule XI, cl. 1(b)(1) (§788)). In addition, a committee need not “obtain such authority each Congress by a separate resolution reported from the Committee on Rules” before conducting its investigation (see id., note). Finally, when a committee conducts such an investigation, it is “authorized . . . to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents as it considers necessary” (id., Rule XI, cl. 2(m)(1)(B) (§805)).

Seems pretty clear, doesn’t it? Not to Trump. A normal reading of these rules might be appropriate for anyone else, but not for the President, he contended. Only an “unequivocal[] grant” from the full House “to subpoena the President’s accountant for his private financial records” would confer appropriate authority on the Committee. After all, given the serious constitutional questions the subpoena raises, separation of powers requires as much.

Trump advanced three arguments to back up this claim. First, he cites circuit precedent in Armstrong v. Bush, 924 F.2d 282 (D.C. Cir. 1991), at 289. “When Congress decides purposefully to enact legislation restricting or regulating presidential action,” Armstrong said, “[Congress] must make its intent clear.” The court continued, saying “there are . . .  compelling reasons to apply th[is] [“clear statement”] rule to statutes that significantly alter the balance between Congress and the President.” Trump took Armstrong and ran with it, claiming that only an “express statement” from the full House would “authorize[] the Committee to embark on its [present] investigation,” and that the above House rules did not qualify as such an “express statement.” But Tatel wasn’t convinced; this argument does nothing but shoehorn an additional, unnecessary requirement into the House Rules—which, Tatel noted, “have no effect whatsoever on ‘the balance between Congress and the President’” (quoting Armstrong, 924 F.2d, at 289). “The [House] Rules . . . deal exclusively with the allocation of authority within the legislative branch,” Tatel continued, “leaving unaltered the House’s subpoena power vis-à-vis the President” (emphasis in original).

Trump’s second argument went something like this: Because both parties acknowledge that there are questions about whether the Committee’s subpoena serves a valid legislative purpose—and thus whether it is constitutional—the court should simply quash the subpoena at this juncture so as to avoid deciding difficult questions of constitutional law. If it seems like I’m giving this argument short shrift, it’s because this argument is just as “unavailing” as the first, as Tatel said himself. The constitutional questions the Committee’s subpoena raises, Tatel wrote, are neither grave, serious, nor difficult. “We harbor no doubts,” he said, “that the subpoena to Mazars comports with constitutional limits, as it seeks documents reasonably relevant to a legitimate legislative inquiry into ‘a subject on which legislation may be had’” (quoting Eastland, 421 U.S., at 508). Therefore, Tatel had “no cause to invoke the canon of constitutional avoidance.”

Trump’s third and final argument seems to swap out legal arguments for a practical one. At the end of the day, because the Committee’s subpoena is so “sensitive,” it would be “better” for the full House to confer upon the Committee the “express authority to subpoena the President for his personal financial records.” Congress has yet to do that, Trump continued, so the court should impose that requirement. But the courts “have no authority to impose such a requirement on the House,” Tatel replied, for “[t]he Constitution gives ‘[e]ach House’ of Congress authority to ‘determine the Rules of its Proceedings’” (quoting Art. I, §5, cl. 2).

As a last gasp, the U.S. Department of Justice (DOJ) tacked on one more practicality-based argument. In an amicus brief, the DOJ voiced its concern that the Committee’s subpoena would open the floodgates for “waves” of successive committee subpoenas, and that these subpoenas would make “far-reaching demands that harry the President and distract his attention” (see DOJ Brief, p.6). But this isn’t a concern to Tatel. If that floodgate exists, only one subpoena has made it through: the Committee’s subpoena to Mazars, which is the only subpoena that needs to be considered. “Time will tell whether the Department’s prediction is accurate,” Tatel wrote, but “we have no need to consider that hypothetical scenario” now.

It has been a “long journey,” Tatel concluded (indeed, 66 pages long). “Having considered the weighty interests at stake in this case, we conclude that the subpoena issued by the Committee to Mazars is valid and enforceable. We affirm the district court’s judgment in favor of the Oversight Committee and against the Trump Plaintiffs.”

Judge Rao’s Dissent

At 68 pages, Judge Rao’s dissent was longer than the majority opinion. In short, Rao felt the majority waved away a critical point to this case: that the Committee is trying to determine whether President Trump has broken the law (specifically, the EGA). If Trump has, it’s an impeachable offense. Therefore, the Committee should have invoked Congress’ impeachment power when it issued its subpoena, not just Congress’ legislative power. As Rao put it, “[w]hen Congress seeks information about the President’s wrongdoing, it does not matter whether the investigation also has a legislative purpose. Investigations of impeachable offenses simply are not, and never have been, within Congress’s legislative power.

Legislative vs. Impeachment Power:

Rao referred back to Chairman Cummings’ April 12 memo. The purposes behind the Committee’s investigation, the memo said, are (1) to determine “whether the President may have engaged in illegal conduct,” and, based on that determination, (2) to “review . . . multiple laws and legislative proposals under our jurisdiction.” The majority held that such an investigation is a valid exercise of Congress’ legislative power. Rao only made it halfway: The second stated objective is a valid exercise of Congress’ legislative power, but the first stated objective is not; it’s an exercise of Congress’ impeachment power. The majority, Rao said, mistakenly accepted the Committee’s legislative-power justification for both purposes of the investigation. “The text and structure of the Constitution, its original meaning, and longstanding practice,” Rao argued, “demonstrate that Congress’s legislative and judicial powers are distinct and exercised through separate processes, for different purposes, and with entirely different protections for individuals targeted for investigation.”

To Rao, it was clear: “Investigating unlawful actions by impeachable officials is outside the legislative power because impeachment provides the exclusive mechanism for Congress to investigate such conduct.” Congress’ legislative power, despite its breadth, does not include the power to enforce the law or determine guilt or innocence. The Constitution clearly reserves those powers to the Executive and Judicial branches, respectively. The only exception is impeachment, and that itself is limited.

Here, the Committee’s investigation into whether Trump has complied with the EGA (and the Constitution’s Emoluments Clause, Art. I, §9, cl.8) is clearly an investigation into “unlawful actions by impeachable officials,” Rao wrote. As such, the Committee—and the majority—should not have looked to Congress’ legislative power to justify the investigation. “The remedial legislative purposes offered by the Committee might authorize any number of other investigations,” said Rao, “but [those purposes] cannot authorize this subpoena, which seeks to determine whether the President violated the law.” Therefore, the Committee’s subpoena represents an “unprecedented assertion” of legislative power, and an invalid one at that.

Appeal to the Supreme Court

The D.C. Circuit handed down its decision on October 11. On October 24, Trump petitioned for a rehearing en banc (that is, for a rehearing of the case by not just a three-judge panel, but the entire D.C. Circuit). This is a common practice for civil cases before a circuit court of appeals (see Fed. R. App. 40, et seq.). On November 13, the D.C. Circuit by a vote of 8:3 denied the en banc petition (also common). Under Rule 41(b), the D.C. Circuit’s mandate would have issued in one week, and Mazars would have had until last Wednesday, November 20, to comply with the Committee’s subpoena and release Trump’s tax returns.

But on November 15, Trump went to the U.S. Supreme Court. He filed an emergency application for a stay of the D.C. Circuit’s mandate. Stressing that this is a “case of firsts” and one that implicates “important separation-of-powers issues,” Trump asked the Court to put the D.C. Circuit’s mandate on hold until he could petition the case on the merits. In the application, Trump noted that the Committee had not yet agreed to hold the subpoena’s enforcement in abeyance until litigation concluded, something it had done twice before at the district and appeals courts.

On November 18, that agreement came. In a letter from the House’s Office of General Counsel, the Committee said it would be open to a ten-day administrative stay that would end on Saturday, November 30. During this time, the Committee would file a brief in opposition to Trump’s request to stay the D.C. Circuit’s mandate pending the filing and disposition of a petition for cert. The stay would allow all nine Justices to familiarize themselves with the case and discuss the parties’ arguments vis-à-vis the longer stay.

Later in the evening on November 18, Chief Justice Roberts entered a three-day administrative stay to allow the Committee to write its brief in opposition. On November 21 (last Thursday), the Committee filed its brief. In short, the Committee urged the Court not to put the subpoena’s enforcement on hold to allow Trump to file a petition for cert. The Committee argued that it wasn’t likely Trump would succeed on the merits before the Supreme Court, and that the harm a stay would cause the Committee outweighs the harm that would befall Trump if the subpoena is enforced.

The next day, Trump filed a short reply to the Committee’s brief in opposition. Trump argued Judge Rao had made a compelling case for why the Supreme Court should review and overturn the D.C. Circuit’s decision, which thus warrants a stay. He also refuted the Committee’s “balancing of equities” regarding the harm that would ensue for each side. Absent a stay, Mazars would have to comply with the subpoena, and the entire case would become moot. As Justice Thurgood Marshall recognized, mootness is the “most compelling” sort of “irreparable harm” that warrants a stay (John Doe Agency v. John Doe Corp., 488 U.S. 1306, 1309 (1989) (Marshall, J., in chambers)).

Monday evening, the Supreme Court granted the stay. Per Supreme Court practice, five Justices had to vote to grant the stay. The order was unsigned and contained no opinions or dissents, so we don’t know how many of the Justices (other than at least five) voted to grant the stay and who those Justices were. We also don’t know who, if any, of the Justices voted nay.

Where We Stand Now

Mazars does not have to comply with the subpoena until two things happen: (1) Trump files his forthcoming petition for a writ of certiorari, and (2) the Supreme Court rules on Trump’s petition.

The Supreme Court has ordered Trump to file his cert petition by noon on December 5 (next Thursday). It’s likely Trump will wait as long as possible to do so. After Trump files his petition, the Committee will have 30 days to file a reply brief that tells the Court why it shouldn’t grant cert. Once those 30 days are up, the Supreme Court can act on Trump’s petition at any time.

So, the Committee’s subpoena will be held back until the beginning of January, at the earliest. But it’s more than likely that the subpoena will be stayed for far longer. In granting the stay, the Supreme Court signaled there’s a good chance it will review the D.C. Circuit’s decision. It of course did not signal how it will end up ruling on the case, but it’s not likely the Court would grant a stay only to end up turning the case away. With this in mind, if we assume the Justices will grant cert, the Committee’s subpoena will be stayed for a few months longer or at least until the Justices decide the case. Given the current timeline (i.e., a possible grant in January), the important constitutional questions invoked, and the public significance of the case, my guess is the Court will add the case to this term and decide it by the end of June 2020, at the latest.

So, in short, we wait in limbo. All we can do right now is speculate—which I do toward the end of this essay. The next thing to check off the list will be Trump’s petition on the merits, which we will receive by December 5. The case is Trump v. Mazars.

But just wait. The drama doesn’t end with the D.C. Circuit; there is a second subpoena floating around in the legal stratosphere, one that similarly has made its way to the Supreme Court. This time, however, we already have Trump’s petition for cert. So, let’s travel 200 miles northeast to the Second Circuit in Manhattan and dive into the second case for Trump’s tax returns. (Now may be a good time for the reader to take a break. But if not, then without further ado…)


The District Attorney’s Subpoena

Background

Earlier this year, Cyrus R. Vance, the Manhattan District Attorney (DA), opened a grand jury investigation that seeks to determine whether a number of individuals have broken New York state law. On August 29, 2019, the DA served a subpoena on Mazars implicating President Trump as well as a number of Trump’s affiliated businesses. In similar fashion to the House Committee’s subpoena, the DA’s subpoena requested, from 2011–2018, the following: (1) all tax returns and related schedules; (2) all statements of financial condition, periodic financial reports, and independent auditors’ reports; (3) all engagement agreements and contracts related to the items in (1) and (2); (4) all source documents and records related to the items in (1) and (2); and (5) all papers, notes, and memoranda related to the items in (1) and (2).

On September 19, Trump sued the DA and Mazars in the U.S. District Court for the Southern District of New York, where he invoked presidential immunity from state criminal processes. Trump urged the district court to declare the subpoena invalid, issue a permanent injunction against it, and bar Mazars from turning over any of the subpoenaed documents.

On October 7, the district court dismissed Trump’s suit. It held, first, that the Supreme Court’s decision in Younger v. Harris, 401 U.S. 37 (1971), controlled, in which case it did not have jurisdiction to rule on Trump’s claim. In the alternative, it also ruled that Trump’s petition for injunctive relief was unwarranted. Trump immediately appealed to the U.S. Court of Appeals for the Second Circuit.

The Second Circuit Decision

Assigned to the appeal were Chief Judge Robert A. Katzmann and Judges Denny Chin and Christopher F. Droney. The panel heard arguments from both sides on October 23, and on November 4 it issued its decision. The panel held 3:0 that, while the district court erred in dismissing the suit under Younger, Trump’s presidential immunity claim was inapplicable to grand jury subpoenas like the one at issue here.

Inapplicability of Younger Abstention:

Chief Judge Katzmann wrote for a unanimous panel. After recapping the procedural history, Katzmann began by overruling the district court’s Younger abstention holding. Younger concerned a California citizen who, during his state criminal trial, asked a federal court to issue a preliminary injunction against the state law under which he was being tried. When a district court actually granted the injunction, California appealed. The Supreme Court held that federal courts cannot enjoin ongoing state criminal prosecutions except in very limited circumstances. (Does that ring a federalism bell?) Here in Trump’s case, the district court dismissed Trump’s claim under Younger, concluding that to block enforcement of the DA’s subpoena would be akin to interfering in ongoing state criminal proceedings.

But Katzmann disagreed. For one, intervening during a grand jury investigation (like here) is different than barging into ongoing state criminal proceedings (like in Younger). But more importantly, the investigation at issue here concerns the president, not a common state citizen. Indeed, Trump immediately invoked federal jurisdiction “to vindicate the ‘superior federal interests’ embodied in Article II and the Supremacy Clause.” Now, this conclusion isn’t to “denigrate the competenc[y]” of New York’s state courts at all, Katzmann noted. But given that the “President raises novel and serious claims that are more appropriately adjudicated in federal court,” Katzmann concluded the district court should not have abstained under Younger.

Injunctive Relief Is Inappropriate:

Trump’s halfway there: he got the Second Circuit to overrule the district court’s first holding. But then came the backup holding: that Trump failed to show why injunctive relief was warranted.

Under Second Circuit precedent, Trump must show two things to obtain injunctive relief against the subpoena: (1) that he would suffer “irreparable harm” absent relief; and (2) either (a) that it is likely he would succeed on the merits of the whole case if he appeals, or (b) if (a) is unattainable, that there at least are important questions about the merits that can be seriously litigated and the balance of harms tips “decidedly” in favor of him (Citigroup Global Markets, Inc. v. VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir. 2010)).

Sounds a bit complex, doesn’t it? Let’s break it down. No matter what, Trump would have to show that he would suffer irreparable harm if the panel does not issue an injunction against the DA’s subpoena. In addition, Trump would also have to show one of the following: first, that when he appealed the district court’s decision, it was likely he would persuade the Second Circuit that his arguments about the entire case are right. Now, that’s a tough burden to meet; often it may not seem likely someone will win an appeal, only that it’ll be a close case. So, if Trump can’t meet that burden, his other option would be to show both that it will be a close case involving difficult, serious questions and that the harm he would suffer without an injunction would outweigh the harm the DA and Mazars would suffer with an injunction.

The district court held that Trump failed to establish that he would succeed on the merits and, most importantly, that he would suffer irreparable harm. Katzmann agreed with the former in short order, and Trump did not put up much of a fight on this point at oral argument. The greater question is whether he would suffer irreparable harm without the injunction. To show that he would, Trump wielded a number of defenses.

First, he claimed “temporary absolute presidential immunity.” Specifically, Trump argued that during his tenure in office, he is immune from all stages of state criminal proceedings—including grand jury investigations—and therefore is immune from the DA’s subpoena. Personally, I think that argument gets dangerously close to the “I can shoot someone in the middle of Fifth Avenue and get away with it.” But Katzmann didn’t even need to reach that claim, because the DA served his subpoena on Mazars, not the president. “[P]residential 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.”

Consider, too, the documents the DA’s subpoena seeks to obtain: Trump’s private tax returns, his corporate tax returns, and other financial information relating to the exercise of his personal businesses. “[N]one of th[ose] materials . . . implicates executive privilege,” said Katzmann. “Nor does the subpoena seek information regarding the President’s ‘action[s] taken in an official capacity’” (quoting Clinton v. Jones, 520 U.S. 681, 694 (1997)). And “[t]hese documents do not implicate, in any way, the performance of his official duties” (footnote omitted). So it seems illogical to say that Trump enjoys “temporary absolute presidential immunity” from a subpoena whose requested documents have nothing to do with Trump’s duties as President.

Trump’s next argument cited the “unique position” the President occupies in the constitutional structure of our federal government (quoting Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982)). As noted in the Younger discussion, courts should not “proceed against the president as against an ordinary individual,” which the Supreme Court articulated in United States v. Nixon, 418 U.S. 683 (1974), at 708.

But the DA hasn’t issued an arrest warrant for Trump, nor has he compelled Trump to testify in-person at a particular time and place. Most importantly, the DA has not “compel[led] the President himself to do anything,” Katzmann wrote (emphasis in original). “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” (footnote omitted).

As a spin-off, Trump argued the DA’s subpoena is at odds with the Supreme Court’s decision in Clinton. There, the Court said in passing that “any direct control by a state court over the President” may “implicate concerns” under the Constitution’s Supremacy Clause (Clinton, 520 U.S., at 691, n.13). But Katzmann reiterated that the DA’s subpoena in no way, shape, or form constitutes “direct control by a state court over the President.” The subpoena is not directed to President Trump, does not order Trump to do anything himself, and does not impede Trump’s ability to exercise the duties of his office.

At the end of the day, Katzmann wrote, it’s important to stress the “narrowness” of this case. Trump’s appeal did not ask the Second Circuit to determine whether presidential immunity shields a president from indictment and criminal prosecution during his/her term in office. Nor did the court have to decide whether a state prosecutor can order a President to turn over documents him-/herself for the purposes of state criminal proceedings. “The only question before us,” Katzmann emphasized, “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.” That answer, Katzmann said, is “yes,” and Trump’s presidential immunity defense does not change it.

Appeal to the Supreme Court

The Second Circuit handed down its decision on November 4. Trump forwent a petition for rehearing en banc, instead going directly to the Supreme Court. On November 14, Trump filed his petition for a writ of certiorari, asking the Justices to review the Second Circuit’s decision. Trump did not have to ask for a stay of the Second Circuit’s mandate, as the parties have mutually agreed not to enforce the subpoena until after litigation before the Supreme Court concludes.

Trump’s Petition:

In a 37-page appeal, Trump highlights the critical questions of constitutional law that this case presents. Specifically, Trump argues the Second Circuit erred when it dismissed Trump’s claim of presidential immunity. The Supreme Court has “stressed the ‘importance’ of questions concerning presidential immunity,” he notes. And “[e]very time a President has asked the Court to review an unprecedented use of legal process against the occupant of the office, it has done so.” Finally, Trump points out that the DOJ, the Second Circuit, and even the Supreme Court itself have all acknowledged that this case raises “novel and serious claims” about constitutional law. All this, then, should prompt the Court to take up this case and resolve these outstanding questions of presidential immunity, Trump says.

Trump begins by stressing that the Supreme Court has yet to delimit the scope of presidential immunity, especially when it butts heads with state legal proceedings. He asserts that the President is “different from all other constitutional officers” and must perform “critical” tasks “at a moment’s notice,” perhaps even “twenty-four hours a day” (citing Akhil Reed Amar & Neal Katyal, Executive Privilege and Immunities: The Nixon and Clinton Cases, 108 Harv. L. Rev. 701, 713 (1995)). Consequently, it is “imperative” that the President not be “distract[ed] . . . from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve” (quoting Fitzgerald, 457 U.S., at 753).

To Trump, then, it’s not a close question whether the Court should take up his case: “For the first time in our Nation’s history, a local prosecutor has issued criminal process . . . directed at a sitting President, as part of a criminal investigation into the President himself.” Whether that investigation is constitutional is a “momentous” question that invokes unsettled inquiries pertaining to presidential immunity and constitutional law.

Next, Trump formulates his argument that the president enjoys absolute immunity from state legal process during tenure in office and, therefore, that this immunity trumps the DA’s subpoena (no pun intended). “Under Article II[ and] the Supremacy Clause . . . the President of the United States cannot be ‘subject to the criminal process’ while he is in office” (quoting the influential “Bork Memo” of 1973). This prohibition is “especially clear,” he says, when the criminal process finds its origin in a state or local prosecutor. To conclude otherwise would be “[t]o hamstring the operation of the whole governmental apparatus, both in foreign and domestic affairs” (quoting the “Dixon Memo” of 1973). Why the “whole governmental apparatus?” Because when the President is prosecuted, Trump answers, the “Presidency itself is . . . prosecuted” since the “President is a unitary executive” (quoting Akhil Reed Amar & Brian C. Kalt, The Presidential Privilege Against Prosecution, 2 Nexus 11, 12 (1997)).

In addition, Trump serves up the “impeachment-before-indictment” argument under the Constitution. Art. II, §4 makes clear that “Impeachment” is the way to “remov[e]” a sitting President from office. Once the President is “convicted” by the Senate, only “then can [the President] be ‘liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law” (emphasis in original) (quoting Art. I, §3, cl.7). “The Constitution’s use of the past-tense ‘convicted’ reinforces that the President cannot be subject to criminal process before that juncture,” Trump concludes (emphasis in original). Letting local DAs “target[]” a sitting president “would . . . distract him from the numerous and important duties of his office,” Trump emphasizes, and it would “intrude on and impair Executive Branch operations.”

In light of these claims, Trump discusses why the Second Circuit’s decision was wrong. First, the Second Circuit debated only whether the DA’s subpoena here was constitutional. But this is a “key conceptual error,” Trump says, for the Supreme Court has always taken a “categorical approach to presidential immunity.” The question is not whether “this criminal subpoena will burden or distract the President;” it is whether the entire concept of local DAs serving subpoenas on sitting presidents “cross[es] the constitutional barrier erected by Article II and the Supremacy Clause.” And to Trump, “[i]t clearly would.”

Second, Trump contends the Second Circuit erred when it viewed the Supreme Court’s decision in United States v. Nixon as controlling. Nixon concerned federal, not state legal process. So, Nixon did not consider whether state criminal proceedings would flout the system of federalism the Constitution has designed. And specifically, whether a subjugation of the federal government’s powers “would result from a state exercising direct control over the President.” Next, Trump says the DA’s subpoena makes the president himself a target, whereas the subpoena at issue in Nixon requested the president to turn over evidence related to someone else. Also, Trump claims Nixon did not have the occasion to consider a claim of presidential immunity, which is the principal defense he raises here.

Finally, Trump finds “untenable” the Second Circuit’s distinction between a subpoena served on the President and a subpoena served on a third-party about the President (like the DA’s here). The DA issued the subpoena not to Trump but to Mazars “precisely because” Mazars “is meant to function, at least for the [DA’s] purposes, as the President.” Mazars maintains Trump’s financial documents, and it therefore acts as the President’s “custodian,” Trump claims. So, he concludes, the Second Circuit was mistaken when it dismissed his immunity claim on the ground that Mazars’ compliance with the subpoena does not burden the president in violation of presidential immunity. Presidential immunity “does not turn on” who actually complies with the subpoena, that being the president himself or his “custodian.” Indeed, Trump asserts, “[s]ubpoenas to custodians must be treated as though they were sent to the target directly.”

For all these reasons, Trump urges the Justices to review and reverse the Second Circuit’s decision.

DA Vance’s Brief in Opposition:

On Thursday, November 21 (one week after Trump’s petition), DA Vance responded to Trump’s brief. The DA acknowledged the Supreme Court’s common historical practice of granting petitions involving claims of presidential immunity. “But [Trump’s] petition provides no compelling basis for the Court’s intervention” this time around, he says.

Consider two of his opening hypotheticals: Can a president be subject to a subpoena? “Yes.” See United States v. Nixon, 418 U.S. 683 (1974), at 713. Can a president be sued during his/her term in office? “Yes.” See Clinton v. Jones, 520 U.S. 681 (1997), at 684. With this in mind, let’s now ask the question that matters in this case: Can a state “issue a subpoena to a third party seeking financial records of the sitting President when those records are relevant to a secret grand jury investigation and have no relation to official actions taken by the President during his time in office?” If you can’t tell by the way he worded that question, the DA is going to answer “yes” again.

Throughout his brief, the DA hardly concedes an inch of ground to the president. Trump argues the Justices should grant this case because (1) it involves important, unsettled questions of constitutional law, and (2) the Second Circuit’s decision was incorrect. “[W]rong on both points,” the DA responds. “[R]esolution of this case follows directly from this Court’s established precedent, and the Second Circuit correctly applied that precedent.”

The DA begins by explaining why the Supreme Court has already settled the “unsettled” questions about the scope of presidential immunity. For starters, take the Court’s statement in Clinton: “it is . . . settled that the President is subject to judicial process in appropriate circumstances” (Clinton, 520 U.S., at 703). To the DA, a subpoena seeking documents that aid in determining whether the president has broken state financial disclosure laws—a subpoena that, when served to a third-party, does not hamper the ability of the president to exercise his/her official duties—is an appropriate circumstance. “More specifically, and of central importance here,” the DA continues, “this Court has long recognized that a sitting President may be subject to a subpoena in a criminal proceeding.” Indeed, in 1807, Chief Justice Marshall considered a subpoena served to President Thomas Jefferson and held that the President “may be subpoenaed . . . and required to produce any paper in his possession” (United States v. Burr, 25 F. Cas. 187, 191 (C.C. Va. 1807)). The Court held similarly in Nixon (see 418 U.S., at 686, 687) and Clinton (see 520 U.S., at 704).

Next, the DA stresses the private nature of this subpoena and why that private nature is dispositive under Clinton and Nixon v. Fitzgerald, 457 U.S. 731 (1982). When assessing claims of presidential immunity, the Supreme Court has “draw[n] a distinction between a President’s official acts and acts as a private citizen,” the DA says. The Fitzgerald Court held that a President “is entitled to absolute immunity from damages liability predicated on his official acts” (457 U.S., at 749 (emphasis added)). Conversely, the Clinton Court held that Fitzgerald’s reasoning “provides no support for [presidential] immunity for unofficial conduct” (520 U.S., at 694 (emphasis in original)). The DA’s subpoena requests documents related only to Trump’s private, unofficial conduct, and not to his official acts as president. So, the DA says, it should be clear that Trump’s claim of presidential immunity ought to fail under Fitzgerald and Clinton.

After this, the DA responds to Trump’s claim that the subpoena will still end up impeding the president’s ability to carry out his Article II duties. Trump’s claim is merely conjectural; it describes a consequence that has yet to happen, but will. However, in Clinton, the Court rejected the idea that subjecting a president to judicial process always “impose[s] an unacceptable burden on the President’s time and energy, and thereby impair[s] the effective performance of his office” (520 U.S., at 702). “[S]imply asserting that judicial process will interfere with the President cannot be enough,” the DA maintains.

Fourth, the DA refutes the arguments Trump makes as to why the Supreme Court has yet to resolve this case’s question. One argument is that the Court has not yet decided whether a president can be indicted while in office or before being impeached. But this question is “irrelevant” to this case, the DA responds. The only question here is whether a state can serve, on a third-party, a subpoena that requests a president’s personal financial records as part of a grand jury investigation. The question is not whether a state can then indict or try a sitting president, steps in the criminal process that come after a grand jury investigation. Another of Trump’s arguments points out that he is a target in the DA’s investigation, whereas President Nixon was not a target in the subpoena upheld in Nixon. But, the DA replies, this claim “understates the extent to which the President was personally implicated in Nixon and overstates the extent to which the President himself is the central focus of the grand jury investigation here.” Nixon was a “coconspirator” in the investigation concerned there, and the DA’s investigation “extends beyond” Trump. Trump’s third and final argument is that Nixon and Clinton only decided questions pertaining to the extent of presidential immunity vis-à-vis federal subpoenas, not state subpoenas, and thus the question this case presents has not yet been decided. But the DA counters that this attempted distinction is “immaterial.” It doesn’t matter whether or not a state “exercises control” over the president when it issues a subpoena like the one here. This is precisely because the DA’s subpoena requests documents that have nothing to do with a president’s official duties. So, the DA’s subpoena only “exercises control” over the president qua private citizen—that is, over Donald J. Trump—not over the Presidency or the president qua president—that is, over President Donald J. Trump. And the DA’s subpoena doesn’t evoke federalism concerns, another worry Trump has. “[R]equesting documents from the President that have no bearing on his official acts[,]” and which are related to a state law investigation, “does not in any respect subordinate federal law to state law” (emphasis in original).

Finally, the DA rejects the “additional considerations” Trump posited in favor of Supreme Court review. The question presented here is of a different stature than the ones presented in Nixon, Fitzgerald, and Clinton. In those cases, the Court granted cert “to answer broad and important questions concerning presidential immunity.” But here, the question presented neither is broad and important, nor does it concern presidential immunity. The subpoena at issue here is related to a “garden-variety investigation into purely private conduct,” the DA stresses. It is not related to any of the concerns assessed in Nixon, Fitzgerald, and Clinton, like a state investigation into a president’s official duties, or a state subpoena for documents related to a president’s official duties, or a state’s request for privileged presidential communications.

For all these reasons, the DA urges the Court not to take up the case. Trump’s “assertion of absolute presidential immunity is foreclosed by this Court’s precedent.”

The DOJ’s Amicus Brief:

On Friday, November 22 (the day after the DA’s brief), the U.S. Department of Justice came out in support of Trump to the extent that he urges the Justices to take up the case. The brief was written by Noel J. Francisco, the U.S. Solicitor General. Most of the 23-page amicus brief explained why the Second Circuit’s decision was erroneous. Notably, however, nowhere in its brief does the DOJ support Trump’s argument that the Supreme Court should reverse the decision below. While much of the DOJ’s brief is critical of the Second Circuit’s reasoning, the department uses that evidence only to say the Second Circuit’s decision merits review, not review and reversal.

The DOJ begins by saying that Article II and the Supremacy Clause of the Constitution shield the president from state interference. Justice Joseph Story in 1833 explained that the president must be able to exercise his/her Article II duties “without any obstruction or impediment whatsoever” (3 Joseph Story, Commentaries on the Constitution §1563, at 418–419 (1st ed. 1833) (“Commentaries”)). In similar fashion, the Supreme Court has since held in Fitzgerald, Nixon, and Clinton that the president enjoys a degree of immunity in his/her official capacity. And while the Supreme Court has not yet addressed this point, the DOJ has long concluded that the president cannot be arrested, indicted, or tried while in office (see the Bork and Dixon Memos of 1973). This comports with Justice Story’s writings, as he said the president “cannot . . . be liable to arrest, imprisonment, or detention, while he is in the discharge of the duties of his office” (3 Commentaries §1563, at 419).

Meanwhile, the Supremacy Clause (Art. VI, cl.2) “bars state and local governments from taking actions that would interfere with the federal government’s autonomy or exercise of its constitutional functions,” the DOJ says. By making the Constitution, federal laws, and U.S. treaties the “supreme Law of the Land,” the Supremacy Clause prohibits states from “retard[ing], imped[ing], burden[ing], or in any manner control[ling], the operations of the constitutional laws . . . to carry into execution the powers vested in the [federal] government,” as the Supreme Court held in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), at 436.

As such, a state DA’s subpoena “raises serious concerns of interference with the Presidency,” the DOJ continues. Such a subpoena “risks exposing the President to unduly burdensome demands for information.” It also raises the risk of presidential harassment, and that risk is “heightened” when the subpoena is issued by a state or local prosecutor, rather than a federal prosecutor. The DOJ further notes that there doesn’t appear to be “any” case law that supports a state or local DA’s subpoena for the president’s personal records (emphasis in original). Indeed, the lower courts in this case “never identified one.”

Next, the DOJ advances the standard it thinks the Court should use to determine whether a state subpoena passes constitutional muster. The Supreme Court hasn’t yet had the opportunity to delimit the scope of presidential immunity from state legal process. But when the Court was faced with a federal subpoena seeking presidential information in Nixon, it said such a subpoena was valid only when there is a “demonstrated, specific need” for the information the subpoena requests (Nixon, 418 U.S., at 713). If this is the standard for a federal subpoena, shouldn’t the standard for a state subpoena be just as high, if not higher given the Supremacy Clause concerns? The DOJ agrees it should be just as high, but it isn’t clear about whether the bar should be raised. A local DA’s subpoena that requests the president’s personal financial records “involves sufficiently serious risks of interference with the President’s performance of his constitutional duties.” “At a minimum,” the DOJ says, this justifies application of the Nixon standard.

The DOJ’s next tack is to point out the Second Circuit’s mistake in not applying the Nixon standard to the DA’s subpoena. The Second Circuit declined to apply Nixon on the following ground: Nixon concerned a federal subpoena for presidential documents that were protected by executive privilege, while this case concerns a state subpoena for private documents that are not privy to executive privilege. The Second Circuit further emphasized that the DA’s subpoena was directed to a private, independent third-party, not the president himself. But these determinations “fail[] to give any weight at all to the distinct risks posed when state and local prosecutors . . . issue subpoenas for a sitting President’s personal records,” including “serious federalism concerns.”

Finally, the DOJ makes clear why the Court should review the Second Circuit’s decision. For one, the Supreme Court has traditionally taken cases concerning the extent of presidential immunity. And here, the question of whether that immunity extends to state legal process has not yet been answered. Second, the appeals court failed to apply the Nixon standard, so the DA has not yet shown a “demonstrated, specific need” for the documents his subpoena requests. And, most importantly, this case presents “grave and important” questions of federalism and constitutional law. All this, the DOJ says, counsels in favor of Supreme Court review.

Subsequent Briefs:

On Monday afternoon (November 25), Trump filed a 12-page reply brief to the DA. In short, it refutes the objections made by the DA and echoes the arguments in Trump’s own petition for the Court to grant cert and reverse. It reemphasizes that this case presents important, unanswered federalism questions; that the Second Circuit should have applied the Nixon standard, but didn’t do so; that the DA’s subpoena does not pass muster under Nixon; and that the president enjoys immunity from state criminal process while in office. All this should convince the Court to review the case and reverse the Second Circuit’s decision, Trump says again.

Also on Monday, the Christian Family Coalition (CFC) Florida, Inc. filed an amicus brief in support of Trump’s petition. (Note: any third-party can file an amicus brief urging the Court to grant or deny cert, so long as all parties to the case consent to the filing.) It first urges the Court to review the case since it raises “extremely important questions of presidential immunity.” It then argues that the Justices should side with Trump on the merits—that is, that the Court should reverse the Second Circuit’s decision and quash the DA’s subpoena. There is a “plausible risk” that the subpoena (and others like it) “will cause serious distraction and diversion from presidential duties.” In addition, the CFC argues state and local prosecutors cannot “impair” the exercise of those duties, and the DA’s subpoena risks setting a precedent for a deluge of subpoenas that will end up doing exactly that.

Where We Stand Now

The procedures for this case are, in the short term, more straightforward than the D.C. Circuit case. Trump has already filed his petition for cert, DA Vance has filed his opposition, and Trump has filed his reply. The next stage in the game is simply whether the Supreme Court will grant review. (The case is Trump v. Vance.)

The Supreme Court will distribute the case for its private conference on Friday, December 13. What does this mean? Every week, all nine Justices meet in private to discuss cases awaiting their review and cases already on their docket. So, at the December 13 conference, the Justices will all debate, and likely vote on, whether to take up this case.

The Court usually releases “orders” (decisions about pending cases) after each conference on Friday afternoon or the following Monday morning. So, we might know as soon as December 13 or 16 whether the Justices will add Trump v. Vance to its docket. If the Court grants the case, chances are the Court will hear and decide it this term, perhaps with a decision by June 2020 at the latest. But at the end of the day, it’s simply a guessing game now about what the Court will do and when.

One final point to remember: Trump does not have to worry about Mazars turning his tax returns over to the DA since the parties in this case have mutually agreed not to enforce the subpoena until after the Court’s disposition. This is slightly different than the D.C. Circuit case, wherein the Supreme Court has imposed filing deadlines that Trump must meet unless he wants the stay on the House Committee’s subpoena to be lifted.


What To Expect Moving Forward

Procedures and Timeframes

Two separate cases concern subpoenas for President Trump’s personal and corporate tax returns. One, Trump v. Mazars USA, LLP, is a dispute between the President and the House Committee on Oversight and Reform, and it concerns whether a congressional committee can subpoena a president’s personal financial records from a private, third-party accounting firm. The other, Trump v. Vance, is a dispute between the President and the Manhattan District Attorney, and it concerns whether a state or local prosecutor can subpoena virtually the same presidential records from the same firm. Trump lost both cases in the lower courts. Trump has now appealed both cases to the Supreme Court.

What do the timelines look like? In the first case, Trump has obtained a temporary stay on the Committee’s subpoena, which means Mazars does not have to turn over Trump’s tax returns to the Committee for the time being. Trump’s petition is due to the Supreme Court by Thursday, December 5. If that petition never comes, the stay will lift automatically. Assuming that doesn’t happen, the Committee will write its reply brief shortly thereafter. The Supreme Court is likely to decide whether it will grant Trump v. Mazars in early January 2020. If the Court does, it’s likely the Court will set it for oral argument in March or April and will decide it by the end of June 2020.

In the second case, the parties have mutually agreed to stay the DA’s subpoena until the Supreme Court either dismisses or grants and decides the case. So, Trump does not have to fret about meeting deadlines, and Mazars does not have to turn over Trump’s tax returns to the DA until litigation before the Supreme Court concludes. Trump has already filed his petition, the DA his opposition, and Trump his reply. We also have amicus briefs from the U.S. Department of Justice and a Florida-based Christian lobbying group. The Justices will debate and vote on whether to grant this case at its private conference on Friday, December 13. We will know shortly thereafter about the Justices’ decision, perhaps even later that day or during the morning on Monday, December 16. If the Court grants the case, the timeline should be strikingly similar: oral argument in March or April and a decision by the end of June 2020.

With this in mind, there’s some ground I want to stake out:

First: Even if the Supreme Court ends up granting and deciding a case against Trump, we likely won’t see Trump’s tax returns until May–June of next year.

Second: My guess is that the Supreme Court will grant at least one of the cases, and probably both. Why? Because it only takes four Justices—not five—to grant a petition. And given the stature of these cases and the gravity of the legal questions they present, I’m willing to bet at least four Justices want to hear these cases, whoever those four might be.

Third: Similarly, I would be very surprised if the Justices deny Trump’s petitions outright. For Trump v. Mazars, the Court has already stayed the Committee’s subpoena twice, the second of which remains in force until after the Court decides what to do with the case. That stay signals that the Court is inclined to hear Trump v. Mazars. So, to deny the case would be an abrupt 180 and it would make me question why the Court issued the second stay in the first place. As for Trump v. Vance, the Court has already set the case for discussion at its December 13 conference. This means at least one Justice felt the case worthy of debate with the rest of the Justices—and my guess is it’s not just one Justice who feels that way. On this point, I should also note that not every petition is discussed during conferences. Many petitions—normally in small cases where the lower court’s decision was objectively correct—don’t merit full-Court debate and are denied outright.

Fourth, and I cannot stress this enough. If the Court takes up one of the cases, that does not mean the Court is indicating it will rule for Trump. Let me repeat: Just because the Court grants a case does not mean it will overturn the decision below. Remember, it takes only four Justices to grant a case, but it takes a majority five to decide one. And just because four Justices may feel one of Trump’s cases merits review does not even mean they are inclined to rule for Trump. They may simply want to see the deeper, more important legal arguments in the briefs that parties file after a case is granted, in order to make a solid decision about how they will decide the case. Plus, it’s always fun to hear oral argument—or perhaps that’s just an outsider’s take!

Parting Thoughts on the Cases’ Legal Questions

I often found myself nodding in agreement, shaking my head in disagreement, and even staring in bewilderment at many of the legal arguments presented in these cases. So, since I couldn’t resist, here are some of my personal takes on a few of the cases’ questions and the answers advanced by Trump, the House Committee, DA Vance, and the lower courts:

Trump v. Mazars:

Does the Committee’s subpoena exceed Congress’ power to legislate?

Trump: “The Committee’s subpoena . . . is an unabashed effort to investigate whether the President violated federal law—a law-enforcement task that exceeds Congress’s legislative power” (Emer. App. for Stay, at 16).

The Committee / D.C. Circuit: “[T]his subpoena is a valid exercise of the legislative oversight authority because it seeks information important to determining the fitness of legislation to address potential problems within the Executive Branch” (Brief in Opp., at 12) (quoting Trump v. Mazars, No. 19-5142, at 50 (D.C. Cir. 2019) (emphasis in original)).

My Answer: No. The Supreme Court’s test is whether the information that a congressional subpoena seeks is related to a subject on which Congress may legislate. This test is found in not one, but four cases. In McGrain v. Daugherty (1927), the Supreme Court upheld a subpoena—issued by the Senate on the brother of the U.S. Attorney General—whose “subject was one on which legislation could be had and would be materially aided by the information which the investigation was calculated to elicit” (273 U.S. 155, 177). In Quinn v. United States (1955), the Court recognized that “[t]here can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and conditions relating to contemplated legislation” (349 U.S. 155, 160). In Barenblatt v. United States (1959), the Court noted that “[t]he power of inquiry has been employed by Congress throughout our history, over the whole range of the national interests concerning which Congress might legislate or decide upon due investigation not to legislate;” and again, that “Congress may . . . investigate into those areas in which it may potentially legislate or appropriate” (360 U.S. 109, 111). And in Eastland v. United States Servicemen’s Fund (1975), the Court upheld a Senate subcommittee subpoena, calling it “a routine subpoena intended to gather information about a subject on which legislation may be had” (421 U.S. 491, 508).

The House Committee’s subpoena to Mazars meets the Supreme Court’s test. The subpoena seeks the financial records of the president, who is subject to the Ethics in Government Act (EGA). The EGA is a federal financial disclosure statute for public officials in the federal government, and this is a subject on which Congress has legislated and may legislate. The information gleaned from the Committee’s subpoena would “materially aid[]” Congress’ evaluation of whether the EGA is effective or requires emendation. Therefore, the subpoena does not exceed Congress’ power to legislate under McGrain, Quinn, Barenblatt, and Eastland.

In addition, the Committee’s subpoena does not exceed Quinn’s limitations on Congress’ power to investigate. First, that power “cannot be used to inquire into private affairs unrelated to a valid legislative purpose” (349 U.S., at 161). The Committee’s subpoena does inquire into Trump’s private affairs, but as I stated above, the exercise of those affairs is related to a valid legislative purpose. Second, that power cannot “extend to an area in which Congress is forbidden to legislate” (ibid.). But federal financial disclosure law is an area in which Congress may legislate, as it did with the EGA. Third, “the power to investigate must not be confused with any of the powers of law enforcement . . . which are assigned under our Constitution to the Executive and the Judiciary” (ibid.). The Committee’s subpoena does not verge on law-enforcement. Law-enforcement in this context would be: (1) the Executive branch (via the DOJ) indicting and prosecuting Trump for breaching the EGA’s provisions, and thereafter (2) the Judicial branch (via federal courts) adjudging guilt or innocence. The subpoena does neither of these things—it only requests financial disclosures related to the EGA to determine the efficacy of the statute. If, after compliance with the subpoena, it’s determined that Trump has failed to comply with the EGA, then the appropriate law-enforcement actions would be taken. Fourth and finally, “limitations on the power to investigate are found in the specific individual guarantees of the Bill of Rights, such as the Fifth Amendment’s privilege against self-incrimination” (ibid.). But as yet, neither Trump, the DOJ, nor another party has raised any argument that the Committee’s subpoena violates Trump’s individual guarantees under the Bill of Rights, including the Fifth Amendment.

Does the Committee have the authority to issue its subpoena?

Trump: “A committee cannot issue a subpoena the House Rules do not authorize . . . [and] [i]t is common ground that the House Rules do not expressly authorize the committee to subpoena the President” (Emer. App. for Stay, at 22–23).

The Committee: “As [Trump] ha[s] acknowledged, ‘literally read, the Rules permit the Committee to issue the challenged subpoena’” (Brief in Opp., at 18) (quoting Trump’s Reply Brief before the D.C. Circuit).

The D.C. Circuit: It is “undisputed by the Trump Plaintiffs, that under the most natural reading of the House Rules, the full chamber has authorized the Committee to issue the challenged subpoena” (Trump v. Mazars, No. 19-5142, at 55 (D.C. Cir. 2019)). And, “we have no need—and most important, no authority—to” “interpret the House Rules narrowly to deny the Committee the authority it claims” (ibid.).

My Answer: Yes. The full House has duly authorized the Committee to issue its subpoena. Recall my discussion of the Second Circuit’s answer, in which I laid out the relevant House Rules. Rule XI, cl. 1(b)(1): “Each committee may conduct at any time such investigations and studies as it considers necessary or appropriate in the exercise of its responsibilities” (House Rules and Manual, 115th Cong., §788). The same Rule’s note: A committee need not “obtain such authority each Congress by a separate resolution reported from the Committee on Rules” before conducting its investigation (see id., n.). Finally, Rule XI, cl. 2(m)(1)(B): When a committee conducts such an investigation, it is “authorized . . . to require, by subpoena or otherwise, the attendance and testimony of such witnesses and the production of such books, records, correspondence, memoranda, papers, and documents as it considers necessary” (id., §805). The Committee’s investigation here meets each criterion. The Committee is conducting an investigation pursuant to its legislative powers; the House has authorized the Committee to issue any subpoenas it deems necessary to complete such an investigation; and the Committee did not need to obtain a separate resolution from the full Congress to issue its subpoena.

Trump v. Vance:

Does the President enjoy absolute immunity from state criminal process while in office?

Trump: “Under Article II, the Supremacy Clause, and the overall structure of our Constitution, the President of the United States cannot be ‘subject to the criminal process’ while he is in office” (Pet. for Cert., at 18) (quoting the 1973 Bork Memo, at 17).

The DA: “[T]h[e] [Supreme] Court has long recognized that a sitting President may be subject to a subpoena in a criminal proceeding” (Brief in Opp., at 13).

The Second Circuit: “[P]residential 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” (Trump v. Vance, No. 19-3204, at 17 (2d Cir. 2019)).

My Answer: The question is irrelevant. The DA’s subpoena subjects Mazars to state investigatory process; it does not subject President Trump to state criminal process. Put differently, a subpoena is but one tool in a DA’s investigatory toolbox, and the information it seeks would help the DA make a decision about whether to initiate state criminal proceedings. Trump argues that a president “cannot be indicted, prosecuted, or imprisoned while in office” (Pet. for Cert., at 19). But the DA isn’t indicting, prosecuting, or imprisoning Trump at all. That would all come after compliance with the subpoena and after the DA determines that the information obtained by the subpoena signals illegal conduct. It is only at that point that we can debate whether a sitting president enjoys absolute immunity from state criminal proceedings.

In addition to the Bork Memo, Trump adduces the Framers of the Constitution and their statements that a president must be impeached before being subject to the criminal process. For example, Alexander Hamilton wrote that “[t]he President . . . would be liable to be impeached, tried, and, upon conviction . . . would afterwards be liable to prosecution and punishment in the ordinary course of law” (Federalist No. 69, at 416 (C. Rossiter ed., 1961)). But this citation isn’t helpful. First, Hamilton’s statement actually lends support to the idea that a sitting president can be subjected to investigatory proceedings. Per Hamilton, before undergoing criminal process, a president must be impeached. But before being impeached, the House must, inter alia, investigate the president’s conduct that it deems impeachable and then deem it so. To be sure, this makes clear that a president can be subject to federal investigatory process without answering whether that is so for state investigatory process. However, Hamilton still answers in the affirmative the question of whether a sitting president can be subject to some sort of investigatory proceedings. But second, and more importantly, both Hamilton and the Bork Memo support an argument that has no real relevance here. The questions of whether or not a sitting president enjoys absolute immunity from state criminal proceedings, and whether or not impeachment must precede subjecting a president to such proceedings, are immaterial to this case.

Finally, Trump argues that compliance with the DA’s subpoena would throw a wrench into the operations of the Executive Branch, in violation of Article II and the Supremacy Clause. On this basis, he argues two things: first, that this is a reason for the Court to grant review; and second, that the Court should therefore declare the DA’s subpoena unconstitutional. I think Trump is spot-on on the first point. Consider the following question: Does allowing a state or local prosecutor to serve a subpoena on a sitting president that forces him/her to comply “interfere[] with the President’s ability to execute his duties under Article II[ and] violate[] the Supremacy Clause” (quoting Trump’s Pet. for Cert., at 4)? That is a serious question of constitutional law that, I think, the Supreme Court should address. So, I agree with Trump in this regard.

That said, let’s assume for sake of argument that the Court answers “yes.” If we apply that holding to the particular subpoena at issue here, Trump’s second argument still fails, for the DA’s subpoena does not stand at odds to the holding. As many parties have already agreed, the DA’s subpoena was served on Mazars, not Trump, and it does not force him to do anything. In this sense, then, if Mazars complies with the subpoena, that itself does not “interfere” with the president’s ability to exercise his Article II duties. Of course, if, after compliance, the DA attempts to indict or prosecute Trump, any reasonable person would say the subsequent criminal proceedings would “interfere” with the operation of the Presidency. But remember, now we’re getting into questions that are irrelevant to whether the DA’s subpoena clears the constitutional bar. In all, then, I’m hard-pressed to see how the issue of presidential immunity is dispositive regarding the DA’s subpoena specifically. Whether a sitting president enjoys immunity from subpoenas served on the president, or from subsequent criminal proceedings, are questions that certainly merit debate. But they’re inapplicable to deciding this case in its specifics.

Has United States v. Nixon already decided this case?

Trump: “[T]he Court’s previous immunity cases,” like Nixon, “identified key elements of this case . . . as an unresolved issue, and carefully reserved that question. The Court should decide it now” (Pet. for Cert., at 3).

The DA: “[T]his case presents only a narrow question that is readily resolved by those very precedents” (Brief in Opp., at 1 (referring to Nixon and one other case)); and later, “[d]enial of the petition here follows a fortiori from Nixon” (Brief in Opp., at 15).

My Answer: No. At bottom, many of the facts leading up to Nixon—facts which largely informed the Court’s decision—were entirely different than the facts surrounding this case. First, the subpoena in Nixon was served by a federal prosecutor on the president himself; here, the subpoena was served by a state prosecutor on a third-party accounting firm. Second, the grand jury in Nixon had already charged a number of people with obstruction and fraud and labeled President Nixon as an “unindicted coconspirator.” The subpoena also ordered Nixon to turn over information about those who were charged. Here, however, the grand jury has not charged anyone, labeled anyone, or ordered anyone to turn over information about anyone else under investigation. And third, what was subpoenaed in Nixon were tapes, memoranda, and communications that were directly related to the formal operations of the Presidency. Here, what has been subpoenaed are private, personal and corporate financial records that are not related to the formal operations of the Presidency.

Now, let’s consider the question presented in this case. It is, I think, whether a state prosecutor can—for the purposes of a state law investigation—subpoena a private third-party for the personal financial records of a sitting president. To what extent does Nixon answer that question? Not a whole lot. The Nixon Court held 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.” In so holding, the Court concluded that “the fundamental demands of due process of law in the fair administration of criminal justice” outweigh a claim of executive privilege when that claim is founded only on a “generalized interest in [the] confidentiality” of private communications related to the formal operations of the Presidency (Nixon, 418 U.S 683, 713 (1974)). Thus, Nixon “defined the scope of judicial power specifically relating to the enforcement of a subpoena for confidential Presidential communications for use in a criminal prosecution” (Nixon, 418 U.S. 683, 703 (1974)).

But Nixon did not define the scope of judicial power when it relates to the enforcement of a subpoena for a president’s private financial records for use in a state investigation. Nixon’s holding hinged on concerns involving the separation of powers and the confidentiality of formal presidential communications. Neither of those concerns is stoked in Trump v. Vance.

That said, the Nixon Court did throw out a couple nuggets that may provide a glimmer of guidance for Trump’s case. First, consider the general standard Nixon set out for determining when a claim of executive privilege is valid: “The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial” (Nixon, 418 U.S., at 713). Nixon concluded that the Special Prosecutor had shown a “demonstrated, specific need” for evidence related to his investigation, and thus Nixon’s “generalized assertion of privilege” must yield to the Special Prosecutor’s subpoena. If the Supreme Court grants Trump v. Vance, Nixon’s “demonstrated, specific need” standard might weigh heavily in the Justices’ minds. Indeed, whether Nixon’s standard applies to the DA’s investigation is an issue both parties haggle about in their briefs.

And finally, consider the Court’s holding in Branzburg v. Hayes: “Although the powers of the grand jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that ‘the public . . . has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege . . . is particularly applicable to grand jury proceedings” (408 U.S. 665 (1972), at 688) (quoting United States v. Bryan, 339 U.S. 323, 331 (1950)). So, under Bryan and (by extension) Branzburg, the DA’s grand jury has a right to the evidence regarding Trump’s financial records, so long as Trump is not protected by any such privilege in the appropriate context. Does an executive privilege or a claim of presidential immunity in this context exist in the Constitution, the common law, or a federal statute? And if so, would it defeat the grand jury’s right to examine the evidence relating to Trump’s personal financial records? Perhaps these questions also will work their way into the Supreme Court’s deliberations.

Does the DA’s subpoena pass constitutional muster?

Well, on second thought, I’ll leave that one for the Supreme Court to decide.

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