Peter Shane is the Jacob E. Davis and Jacob E. Davis II Chair in Law at the Ohio State University Moritz College of Law.
The 2016 victory of Donald Trump after his malignant campaign posed a question for lawyers, judges and government officials that has never really gone away: To what extent should the law treat now-President Trump as a normal president? Both constitutional and administrative law are shot through with doctrines in which challengers to executive branch action are met with “deference” to the president, “presumptions of regularity” and other judicial mood-setting devices that tip the scales in favor of the chief executive. The dilemma is whether Trump should receive the benefit of such doctrines without any post-inauguration pivot toward less mendacity and ridicule, more ethical sensitivity, or apparent respect for norms of democratic governance.
In one of the final decisions of the Supreme Court’s October 2017 term, Trump v. Hawaii, the Roberts court’s five-conservative majority decided in favor of normalcy in upholding Trump’s revised travel ban proclamation. While acknowledging the bigotry of Trump’s statements indirectly, the majority insisted that, “in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility,” the court was bound to “consider not only the statements of a particular President, but also the authority of the Presidency itself.” The majority’s approach drew two written dissents, including an impassioned and closely reasoned statement by Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg. The upshot, however, was unambiguous victory, legal and political, for Trump.
The court’s final decisions of the October 2019 term, Trump v. Vance and Trump v. Mazars, show, however, that “normal” law is two-sided. What normalcy gives, normalcy can also take away. In Vance, the court unanimously rejected the proposition that presidents have absolute immunity from state criminal subpoenas. The main opinion, written by Chief Justice John Roberts for himself and the four more liberal justices, discounted Trump’s three asserted bases for immunity — the diversion of presidential attention from official duties, the stigma of being subpoenaed (an argument, incidentally, that was not even joined by the Justice Department), and the potential for presidential harassment. On the last point, it was state courts and prosecutors who got the benefit of presumed good faith.
Yet more tellingly, the majority additionally rejected the idea that “a state grand jury subpoena seeking a President’s private papers must satisfy a heightened need standard.” The Vance subpoena, on its face, threatened no impairment of the president’s constitutional functions. Thus the majority reasoned that the ordinary limits on subpoenas — questions of scope, undue burden and even privilege — would give the president any and all the protections appropriate to his case. The majority, with Justices Brett Kavanaugh and Neil Gorsuch concurring in the judgment, remanded to the trial court for the president to press any such arguments.
Where Kavanaugh and Gorsuch parted company with the majority was in their preference for applying the “demonstrated, specific need” standard of United States v. Nixon in determining the enforceability of the subpoena. But here is where we see what might be called the revenge of normality. The majority opinion begins: “In our judicial system, ‘the public has a right to every man’s evidence.’” It ends with the same idea, underscoring that, in complying with subpoenas, the president is a normal citizen. The standard would not be heightened. Presidents cannot avoid criminal process just because they want to.
Mazars, which was consolidated for decision with Trump v. Deutsche Bank AG, involved a total of four broad subpoenas emanating from three congressional committees seeking extensive financial information about Trump, his children, other family members or affiliated businesses. The committees were the House Committee on Financial Services, the House Permanent Select Committee on Intelligence and the House Committee on Oversight and Reform.
Each subpoena-issuing committee argued that the information it sought related to legislative functions within its particular jurisdiction. Two Financial Services subpoenas purportedly related to “efforts to close loopholes that allow corruption, terrorism, and money laundering to infiltrate our country’s financial system.” Intelligence Committee Chairman Adam Schiff declared that his committee planned “to develop legislation and policy reforms to ensure the U.S. government is better positioned to counter future efforts to undermine our political process and national security.” Rep. Elijah Cummings, chairman of the Oversight Committee, wrote a memo asserting the committee’s authority to investigate four categories of potential misconduct by Trump. He added: “The Committee’s interest in these matters informs its review of multiple laws and legislative proposals under our jurisdiction.”
A split panel of the U.S. Court of Appeals for the 2nd Circuit upheld, for the most part, the subpoenas issued by the Financial Services Committee and the Intelligence Committee to Deutsche Bank and Capital One, concluding that “all three subpoenas seek documents that the Committees are entitled to believe will disclose information pertinent to legitimate topics within the Committees’ authorized investigative authority, especially money laundering, inappropriate foreign financial relationships with the named individuals and entities, and Russian operations to influence the U.S. political process.” The panel remanded for further consideration of a limited number of potentially excludable sensitive documents.
A split panel of the U.S. Court of Appeals for the District of Columbia Circuit, for its part, upheld the Oversight Committee’s subpoena to Trump’s accountants. In the majority’s view, adequate legislative purpose was established by the listing of the four investigative topics in Cummings’ committee memorandum and by letters he wrote to both Mazars and to White House counsel that referred to his committee’s plans to assess whether “changes to the laws … relating to financial disclosures required of the President are necessary.”
In his opinion for seven members of the court in Mazars — there were no separate concurrences this time — Roberts sought to deliver a double-dose of normalcy. In at least a temporary victory for Trump, the majority faulted the lower courts for reaching their conclusions without “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.” Such an analysis would include at least four inquiries: (1) whether “other sources could reasonably provide Congress the information it needs in light of its particular legislative objective”; (2) whether the subpoena is “no broader than reasonably necessary to support Congress’s legislative objective”; (3) whether Congress has “adequately identifie(d) its aims and explain(ed) why the President’s information will advance its consideration of the possible legislation”; and (4) a careful assessment of “the burdens imposed on the President by a subpoena.”
The inquiry thus prescribed shows a president special solicitude. But it is normal solicitude, appropriate to the gravity of a serious clash between co-equal branches of government. I grimaced to read the chief justice’s assertion that the president is “the only person who alone composes a branch of government”; that formulation renders Article II’s mention of “departments” utterly mysterious. But the basic point is sound: A conflict between Congress and the president, even in his personal capacity, raises separation of powers concerns that normally counsel sensitivity.
But Congress also gets the benefit of normalcy. Contrary to the arguments of Trump and the solicitor general, the majority would not transplant the heightened standards for overcoming executive privilege “to cases involving nonprivileged, private information.” Instead, seven justices endorsed the doctrine that Congress’ power to investigate and issue subpoenas is as broad as its legislative authority, encompassing “inquiries into the administration of existing laws, studies of proposed laws, and ‘surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them.’” The executive branch should not treat too lightly the “significant interests” of Congress any more than the lower courts should give short shrift to the president.
Unfortunately, one immediate side effect of all this normalcy is a continuance of the advantage that inertia gives to alleged wrongdoers. Trump has demonstrated that stonewalling demands for information can work to avoid accountability. None of the fact-finding that the House committees seek is likely to advance substantially before the next election. In January 2021, assuming House Democrats remain in control, their processes may well have to begin anew.
But absent a legislatively prescribed fast-track procedure for adjudicating Congress’ subpoenas — and, one has to say, rather more careful lawyering than the House proffered in these cases — it is not clear that the court should have done much more than it did. In Trump v. Hawaii, the insistence on normalcy seemed out of touch because civil liberties were at stake, and the president’s comments were so abhorrent. The possibility that Trump will have successors equally needing protection from their own public displays of bigotry seems remote enough that protecting the presidency in that particular context was regrettable. There will, however, always be presidents and houses of Congress in conflict, and taking the normal institutionalist stance seems more constructive. Of course, some may suspect that Roberts is secretly unprepared to affirm the future enforcement of Trump-related subpoenas by lower courts conducting the more careful inquiry Mazars requires. On this matter, however, I am prepared to give the chief a presumption of good faith. At least, that presumption is normal.
Symposium: The Trump subpoena cases and the search for normalcy,
SCOTUSblog (Jul. 10, 2020, 10:24 AM),