What Does the Supreme Court’s Holding About President Trump’s Tax Returns Tell Us About Presidential Immunity and the Separation of Powers?

The Supreme Court released its decision for Trump v. Vance, one of the highest profile lawsuits seeking President Donald Trump’s tax returns, on July 9, 2020.  This case has reviewed the separation of powers and presidential immunity to an extent not seen for decades.  Presidents and candidates have been voluntarily making their tax returns public on a regular basis since the 1970s, however, President Trump declined to do so.  This has led to a struggle between private parties, Congress, and the Executive that has raised a number of questions regarding the separation of powers in our modern democracy. 

The Supreme Court was split on the level of deference courts should show to the President, sending the Trump v. Vance case back down to the lower courts for further proceedings.  The Supreme Court did not believe that the lower courts had sufficiently analyzed congressional subpoenas for similar records, though it did come together to unanimously reject President Trump’s claim that he should have “absolute immunity” as the president in a New York state criminal investigation. 

The case originated when the New York County District Attorney’s Office issued a subpoena in 2019 to the personal accounting firm of President Trump to gain his personal and business-related financial records.  President Trump, acting as an individual rather than in his capacity as President, sued the accounting firm, Mazars USA, to enjoin enforcement of the subpoena under an argument that he has absolute immunity under Article II and the Supremacy Clause of the Constitution. 

The Manhattan District Attorney involved in this case, Cyrus Vance, Jr., issued a subpoena in an investigation of whether President Trump or his companies violated campaign laws in New York by falsifying financial documents in providing “hush-money” payments leading up to the 2016 election.  The attempt to secure these tax records raises a number of issues related to the separation of powers, including the extent to which Congress has oversight over the President, whether a sitting President can be investigated or indicted by a state prosecutor, whether Presidential immunity also protects the personal records of the President that third parties possess, and more. 

The Supreme Court was split on many of these issues.  While the justices were unanimous in holding that the President does not enjoy absolute immunity, there were notable differences in how the justices approached other issues of power.  The rulings for both Trump v. Vance and Trump v. Mazars were 7-to-2.  Chief Justice John Roberts authored the majority opinion and stated that Vance did have the authority to pursue the personal and business-related records of the President, and President Trump did have to comply with subpoenas seeking such records. 

The Court believed that providing such absolute immunity would cause problematic restrictions on Congress that could impede its ability to complete its responsibilities.  To prevent such an impediment to Congress, the Court stated that Congress can demand private, nonprivileged information such as the records at issue in this case. 

The Supreme Court did not, however, permit the lawsuit to go forward as is.  The majority stated that there may have been an overreach by the lawyers and the specifics of Vance’s inquiry could be challenged in the lower courts.  The precedent the Court relied on in determining the level of deference to be granted came from cases involving Presidents Richard Nixon and Bill Clinton, in which the Court forced President Nixon to turn over recordings for a criminal investigation and allowed a civil suit against President Clinton to continue. 

The president does enjoy certain protections against investigations under the Constitution.  For the most part, presidents cannot be held liable in a personal capacity for actions they completed in their role as an executive power.  The Supreme Court held that this protection does not extend to criminal cases, however.  The holding was legally similar to the case against President Nixon in 1982, in which the Court also held that presidents are not immune to federal criminal proceedings while in office.  The protections are therefore only for civil suits brought against presidents acting in their official capacity for the extent of their time in office. 

One of the novelties of this case is in whether state criminal proceedings can be brought against the President.  Some of the arguments against allowing such criminal investigations to go forward include that it could be a distraction to the President, that it can make the President an easy target for frivolous and harassing lawsuits, and that it undermines the President on a global scale. 

The Court rejected these arguments, instead holding that distraction is not a sufficient reason for protection from liability.  The Court also held that attempts to harass are not an issue because the law protects against grand juries engaging in “arbitrary fishing expeditions” or starting investigations “out of malice or an intent to harass.”  If it is believed that such a proceeding is occurring, federal courts may intervene.  Finally, the Court stated that the President should not be undermined for participating in normal duties assigned to the country’s citizens such as providing information relevant to criminal investigations. 

With contribution from Angela Mauroni, second year J.D. candidate at the University of Pittsburgh School of Law.

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