But it would be a mistake to assume that the court will give Trump a resounding victory, or come close to upholding the extreme propositions that the president has been unsuccessfully advancing in the lower courts.
It is much more likely that the court will first set out principles defining the circumstances — for example, some sort of heightened evidentiary showing — under which the president’s personal records have to be turned over. They probably will be pro-executive branch principles that slant the balance toward future presidents, but Trump needs more than that to keep his taxes from public view.
And the next step after such a holding would be to remand to the lower courts to apply the announced principles, probably during the heat of the election, though possibly after. That is where Trump’s extreme arguments are likely to meet their end.
Consider first of all that the justices opted to decide all three cases on the merits. That includes the two cases from the U.S. Court of Appeals for the D.C. Circuit and the 2nd Circuit involving subpoenas from House committees to his accounting firm, Mazars USA, and to Deutsche Bank. But it also includes the 2nd Circuit case, Trump v. Vance, in which the intermediate court rejected Trump’s outlandish claim of “temporary absolute presidential immunity.” The court placed its holding on narrow, stable grounds: that whatever the scope of presidential immunity, it does not bar the enforcement of a state grand jury subpoena directing a third party — here Mazars — to produce non-privileged material that may pertain to the president.
The Supreme Court did not have to agree to review the Vance case, since it was plainly right and narrowly decided. An obvious alternative would have been to put the case on “hold” pending a court decision in the D.C. Circuit cases, then remand to the lower court for it to decide in the first instance what impact if any that decision had on the Vance case.
Instead the court will decide the case, reviewing the reasoning of the 2nd Circuit. That matters. No doubt the court has several members — including Trump appointees Neil M. Gorsuch and Brett M. Kavanaugh — who are particularly solicitous of executive power. But it is near inconceivable that five justices would endorse the presidency über alles reasoning that Trump’s lawyers have urged in that case.
Moreover, as a practical matter there is no five-justice majority in these cases that doesn’t include Chief Justice John G. Roberts Jr. He will be keenly aware of the need for the court not to appear to be politically beholden to Trump or the Republican Party, and of his own historic role, like that of chief justices in previous cases involving the president, to muster as nearly as possible a consensus, conclusive view from the court.
It is possible, of course, that the court could hold in Trump v. Vance that the Constitution requires a local prosecutor to make some special showing of need to obtain the president’s private records. But that would hardly be a resounding victory for Trump: The likely aftermath would be a second round of proceedings in the lower courts and a renewed finding of whatever requirements the court had imposed.
Likewise in the congressional subpoena cases, which also seek Trump’s private records from third parties. Trump’s position is that the Congress has no “legitimate legislative purpose” in seeking them. It would be a breathtaking rebuke of Congress, and inconsistent with the court’s review of legislative action across a wide range of settings, for the court simply to dismiss Congress’s purpose as illegitimate absent overwhelming proof. Roberts will not permit the court to engage in such a highhanded spanking of a coordinate branch.
Again, the court could well impose some special procedural hurdles where the records of the president himself are in issue. But it’s unlikely those barriers would be so high that Congress couldn’t establish them on remand before the D.C. Circuit, given the showing that Congress will likely be able to make.
A similar mixed verdict happened in the case of Richard Nixon, as Steve Vladeck has pointed out. We remember U.S. v. Nixon principally for its definitive rebuke of a stonewalling president. But the court’s unanimous decision also recognized the existence of executive privilege for the first time, and thus stands historically as something of an important decision in favor of executive power.
It’s hard to expect such a decisive result with today’s highly splintered court, and in particular with the staunch views of at least three justices — Clarence Thomas, Samuel A. Alito Jr. and Gorsuch — whom the chief justice may have a devil of a time bringing along. But the general contours seem likely to hold, meaning an announcement of basic doctrine that is bullish on executive power but that still leaves Trump with a probable losing hand going forward — in other words, a blockbuster opinion on executive power for the ages, but not resoundingly for the president.