All the President's Papers

A preliminary assessment of Trump v. Mazars and Trump v. Vance.

The Supreme Court's late oral arguments led to an extension of the Supreme Court's term into July, and the later release of decisions than is usual. This created quite a challenge for those of us asked to analyze opinions from this Court's term for the Cato Supreme Court Review, given the journal's aggressive production schedule. The CSCR is released each year on Constitution Day, September 17, and this year is no exception.

My assignment for the review was Trump v. Mazars and Trump v. Vance. While it took some doing, my article on the decisions ("All the President's Papers") is done, and a draft is on SSRN. Here is the abstract:

In a pair of cases during the 2019-20 Term, Trump v. Vance and Trump v. Mazars, the Supreme Court revisited questions of presidential immunity and the scope of legislative oversight that infrequently come before the Court. In two opinions by Chief Justice Roberts, the Court rejected broad claims of presidential immunity while recognizing the real separation of powers concerns raised by any investigation of the President. In these two decisions, the Court reaffirmed two fundamental constitutional values: 1) No person is above the law; 2) The powers of Congress are limited. In the process, the Court also demonstrated an ability to resolve important constitutional questions without descending into the political polarization that engulfs the body politic in 2020.

I will present this paper at Cato's 19th Annual Constitution Day conference, when the 2019-20 CSCR will be released. Other speakers include Stephen Vladeck, Robin Fretwell Wilson, Tom Goldstein, Justice Clint Bolick, and the VC's own Keith Whittington. A keynote will also be given by the Honorable Don Willett of the U.S. Court of Appeals for the Fifth Circuit. You can register for the conference (which will be online due to Covid-19) here.

Comments

[David H.]

Just finished reading the paper. Very clear and concise. My takeaway is that you are yet another strong voice damning Douglas Letter. I was in the Court during Seila Law v CFPB and was struck by how poorly Letter did during his time at the lectern. He was even worse in Mazars, as you write.

Effective counsel matters.

[Tempe Jeff]

According to Precedent, Trump just has to call them Presidential Papers and, he can refuse to release them or; allow access to them for Years. Until, they are properly catalogued. See Biden and U of Delaware and Obama Presidential Library papers with a 5 year Moratorium before they can be inspected.

[Stephen Lathrop]

2) The powers of Congress are limited.

That can be understood in two quite different ways. On the one hand, it might say, in effect, "Congress has these enumerated powers, but only these and not others." The limitation in that understanding is found in the Constitutional designation of which powers.

On the other hand, the same language can be interpreted, and has been interpreted, to mean, "No power of Congress, however plainly enumerated, is plenary. Any lawyer wishing to claim a specific power for Congress must be prepared to answer what conduct under that power would example impermissible overreach." The limitation there seems to be a presumption (from where?) that courts have power to say not only which powers the Constitution has authorized, but also the extent to which any authorized power may be exercised.

Those are different meanings, with widely differing implications for federalism and the balance of powers. Evidence for the first interpretation is easy to find in the historical record. For the second interpretation, not so much.