The Volokh Conspiracy
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The Supreme Court issued its final decisions of the term today, resolving the long-running dispute over Donald Trump's financial records and the status of eastern Oklahoma. The Court resoundingly rejected claims of Presidential immunity, but also roundly rejected the House of Representatives' claims of unlimited investigatory authority. The Court also ruled in favor of Native American claims against Oklahoma, in a 5-4 decision that produced the first and only dissent by Chief Justice Roberts so far this term (and only his second dissenting vote).
The first opinion of the day was McGirt v. Oklahoma, one of the most fascinating (and under-explored) cases of the term. Justice Gorsuch wrote for a five-justice majority that, for purposes of the Major Crimes Act, much of eastern Oklahoma is still "Indian country," and therefore the state lacks the jurisdiction to criminally prosecute members of Native American tribes for offenses covered by the Major Crimes Act.
Joined by the Court's liberals, here is how Justice Gorsuch's opinion begins:
On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding "all their land, East of the Mississippi river," the U. S. government agreed by treaty that "[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians." Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and "permanent home to the whole Creek nation," located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833 Treaty). The government further promised that "[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves." 1832 Treaty, Art. XIV, 7 Stat. 368.
Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.
Chief Justice Roberts wrote a dissent (his only authored dissent of the term), joined by the other conservatives, save for footnote 9 (which Justice Thomas did not join). Justice Thomas also wrote a separate dissent.
The Court also issued a one line per curiam opinion in Sharp v. Murphy, a case raising the same issue that had been held over from last term, presumably because the Court split 4-4. Justice Gorsuch was recused from that case. Sharp was decided 6-2 in accord with McGirt. Justice Thomas and Alito noted their dissent.
Chief Justice Roberts had the majority opinions in both Trump financial records cases, both of which were decided 7-2. First up was Trump v. Vance, in which the Court rejected Trump's claims of immunity from state grand jury proceedings. The Court was unanimous in rejecting Trump's claims of absolute immunity, but split 5-2-2 on the proper standard to apply.
Chief Justice Roberts, writing for himself and the Court's four liberals, concluded that neither Article II of the Constitution nor the Supremacy Clause bar a state criminal subpoena for the personal records of a sitting president, nor do they require a heightened standard. Nonetheless, Roberts also concluded that a sitting President can still make specific objections to specific elements of a subpoena, and the lower courts will have to consider such objections on remand.
His opinion for the Court begins:
In our judicial system, "the public has a right to every man's evidence."1 Since the earliest days of the Republic, "every man" has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts. This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable. We granted certiorari to decide whether Article II and the Supremacy Clause categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.
His opinion for the Court concludes:
Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need. The "guard furnished to this high officer" lies where it always has—in "the conduct of a court" applying established legal and constitutional principles to individual subpoenas in a manner that preserves both the independence of the Executive and the integrity of the criminal justice system. . . .
The arguments presented here and in the Court of Appeals were limited to absolute immunity and heightened need. The Court of Appeals, however, has directed that the case be returned to the District Court, where the President may raise further arguments as appropriate.
We affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
Jsutice Kavanaugh, joined by Justice Gorsuch, concurred in the judgment, arguing that the standard for a state criminal subpoena should be the "demonstrated, specific need" test adopted by the Court in United States v. Nixon.
Justices Alito and Thomas each wrote a separate dissent. While neither embraced the argument that the President is immune from the issuance of any subpoena, they both believed the lower court decision should be vacated as the President may be entitled to relief against enforcement of the subpoena while he remains in office.
The Chief Justice also had the opinion for the Court in Trump v. Mazars, and this decision was also 7-2. In this decision the Court rejected the claims of both sides, reaffirming Congressional authority to conduct oversight, but roundly rejecting the claims put forward by the House of Representatives, and vacating the lower court decisions from the U.S. Courts of Appeals for the Second and D.C. Circuits. Of note, not a single justice voted to uphold the lower court decisions or to embrace the House of Representatives' legal theory.
Chief Justice Roberts opinion for the Court was joined by the Court's four liberals and Justices Gorsuch and Kavanaugh. Justices Alito and Thomas each dissented.
Chief Justice Roberts' opinion for the Court reaffirms that Congress has broad authority to subpoena information to aid it in its legislative function. It also reaffirms that this power—like all legislative power—is subject to limits, and that the lower courts failed to account for or acknowledge such limits. On behalf of seven justices, the Chief called for a more balanced approach.
Congressional subpoenas for the President's personal information implicate weighty concerns regarding the separation of powers. Neither side, however, identifies an approach that accounts for these concerns. For more than two centuries, the political branches have resolved information disputes using the wide variety of means that the Constitution puts at their disposal. The nature of such interactions would be transformed by judicial enforcement of either of the approaches suggested by the parties, eroding a "[d]eeply embedded traditional way of conducting government." Youngstown Sheet & Tube Co., 343 U. S., at 610 (Frankfurter, J., concurring).
A balanced approach is necessary, one that takes a "considerable impression" from "the practice of the government," McCulloch v. Maryland, 4 Wheat. 316, 401 (1819); see Noel Canning, 573 U. S., at 524–526, and "resist[s]" the "pressure inherent within each of the separate Branches to exceed the outer limits of its power," INS v. Chadha, 462 U. S. 919, 951 (1983). We therefore conclude that, in assessing whether a subpoena directed at the President's personal information is "related to, and in furtherance of, a legitimate task of the Congress," Watkins, 354 U. S., at 187, courts must perform a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the "unique position" of the President, Clinton, 520 U. S., at 698 (internal quotation marks omitted).
His opinion then identified several factors courts should consider in evaluating Congressional subpoenas for information from the President, such as his financial records, including whether the "asserted legislative purpose warrants the significant step of involving the President and his papers," and instructed lower courts to ensure that congressional subpoenas are "no broader than reasonably necessary" to support those objectives, including by examining the bases upon which the claims of legislative need are based.
On first read, this approach seems to strike an appropriate balance between the branches. It also seems to be quite a repudiation of the lower courts' opinions in these cases, as well as the unbounded assertion of authority pressed by the House of Representatives at oral argument.
The opinion concludes:
When Congress seeks information "needed for intelligent legislative action," it "unquestionably" remains "the duty of all citizens to cooperate." Watkins, 354 U. S., at 187 (emphasis added). Congressional subpoenas for information from the President, however, implicate special concerns regarding the separation of powers. The courts below did not take adequate account of those concerns. The judgments of the Courts of Appeals for the D. C. Circuit and the Second Circuit are vacated, and the cases are remanded for further proceedings consistent with this opinion
Justices Thomas and Alito each dissented separately. Justice Thomas would have held that Congress has no authority to issue legislative subpoenas for the President's private, nonofficial documents, and can only obtain such documents through the impeachment power (a power the House expressly disavowed in this case). In this respect, his opinion is quite close to that of his former clerk, Judge Neomi Rao, who dissented from the D.C. Circuit's Mazars opinion.
Justice Alito would not go quite as far as Justice Thomas, but argued that legislative subpoenas for a President's personal documents are "inherently suspicious" and must be subject to a more careful review by the courts than the majority opinion calls for.
As a practical matter, these decisions mean that the legal proceedings in all of the financial records cases will continue. The Vance decision is a more decisive loss for the President, but that case involves grand jury subpoenas, so any documents eventually turned over will be covered by grand jury secrecy rules. Mazars is more of a split decision, rejecting the extreme positions adopted by both President Trump and the House. Under the test the Chief Justice articulates, I believe Congress is capable of getting much of the information that it seeks, but it will have to abandon the overly partisan, blunderbuss approach it has adopted to date.
As already noted, I think it's important to highlight the fact that not a single justice wrote separately to support the lower court opinions in the cases consolidated in Mazars. Nor was a single justice willing to write in support of the unbounded House claims that many commentators thought were unquestionably correct. I also think its fair to say that the Chief Justice's Mazars opinion is closer to the two lower court dissents in key respects (those by Judges Rao and Livingston) than to the majorities, in that it took seriously the need for limitations and constraints on legislative subpoenas, grounded in careful consideration of the legislature's stated need for the documents in question.
Do the financial records cases matter politically? I doubt it. I doubt there is anything in the relevant records that would affect the November election, as I doubt they contain anything that would dissuade anyone voting for Trump who is otherwise inclined to support his reelection. Put another way, a voter who is willing to ignore or discount all that we already know about the President, is unlikely to care about (or pay attention to) financial improprieties of the sort these documents might uncover.
But these cases may matter in a different way. By rendering 7-2 judgments in these two cases, and eschewing the partisan divisions that we see throughout our other institutions, the Court has demonstrated an ability to reach careful, balanced judgments on important separation of powers questions with deep political significance. That is a good thing.