In Vance, Chief Justice John G. Roberts Jr. — writing for a 7-to-2 majority — held that the president not only lacks immunity from a state criminal investigation but also enjoys no special, heightened standard of proof. Roberts recounted the history of the trial of Aaron Burr and then-Chief Justice John Marshall’s ruling that President Thomas Jefferson was not immune from a subpoena for records. “In the two centuries since the Burr trial, successive Presidents have accepted Marshall’s ruling that the Chief Executive is subject to subpoena,” Roberts wrote. He also cited U.S. v. Nixon, which held that “the President’s ‘generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.’” While these cases involved federal subpoenas, Roberts held that state subpoenas are no different. Rejecting the notion of absolute immunity, Roberts found that “we cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause.” (On this, he points out there was unanimous agreement in the court.)
As for the standard to be used, Roberts also found, “Requiring a state grand jury to meet a heightened standard of need would hobble the grand jury’s ability to acquire ‘all information that might possibly bear on its investigation.’” The lack of a heightened standard of proof leaves the president “the same protections available to every other citizen, including the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth.” The president stands as every other citizens does — not above the law, but fully within its reach and the beneficiary of its protections. This is as strong a statement as “the president is not above the law” as one could hope for.
In an even more surprising ruling, also 7-2, Roberts wrote for the majority that the president is not shielded from congressional subpoenas directed at third parties for his documents. The case will be remanded to take into consideration four factors in determining whether to enforce the subpoenas. If the case does not involve executive deliberations, as was the case involving Trump’s financial dealings, the safeguards attendant to “candid, confidential deliberations within the Executive Branch” do not apply. “We decline to transplant that protection root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations. The standards proposed by the President and the Solicitor General—if applied outside the context of privileged information—would risk seriously impeding Congress in carrying out its responsibilities.”
Moving on to the considerations that courts should undertake, Roberts finds:
First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. … Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. … Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial the evidence of Congress’s legislative purpose, the better. … Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena.
Roberts concludes that “all citizens” must cooperate with congressional demands for information needed for legislative action but that there are “special concerns regarding the separation of powers. The courts below did not take adequate account of those concerns.” The courts will consider the case “consistent with this opinion.”
“These opinions offer a resounding, definitive rejection of President Trump’s claims to monarchical prerogative. They affirm in the clearest possible terms that the president is not above the law — and that he is subject to state criminal subpoenas and congressional investigation under appropriate circumstances,” constitutional scholar Joshua Matz tells me. “To its credit, the Supreme Court does not throw the door wide open without any limits. It instead recognizes that principles of federalism and the separation of powers must structure the scope of any investigation concerning the president. But towering above those limitations is the court’s vital, timely recognition that we are a democracy and our president is no king.”
If one views this as a question of absolute power and the imperial pretensions of a president, the two cases represent a stunning rebuke to Trump. If one expected to get a peek at the documents before the election, the cases may disappoint. The latter, however, is far less critical than the former. We are a country of laws. The president is bound by them. Not a bad day’s work for the highest court nor for its reputation as an impartial umpire.
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