Trump v. Vance

THE EXECUTIVE’S SPECIAL POSITION

President Trump contends that the Constitution confers on him absolute immunity from any criminal proceedings during his presidency. Brief for Petitioner, Donald J. Trump at 19. He argues that in vesting executive power in a single individual, Article II recognizes the president’s unique status. Id. at 20. The United States, in support of President Trump, contrasts Article II’s conception of the “indispensable” president with Article I’s provisions permitting Congress to assemble as infrequently as once per year and to conduct business with only half of its members. Brief for the United States, in Support of Petitioner at 8. Complying with criminal proceedings, President Trump argues, may distract the president and paralyze the government in foreign and domestic affairs. Brief for Petitioner at 23. President Trump contends that the Constitution’s impeachment provisions, which protect the executive from indictment while in office, signal the Framers’ intent to shield the president from any kind of criminal proceedings whatsoever. Id. at 21–22. President Trump contends in the alternative that even if he is not immune from this subpoena, the Supreme Court in United States v. Nixon has still categorically imposed a heightened standard for issuing subpoenas on presidents. Id. at 45. President Trump and the United States assert that Vance needed to show a “demonstrated, specific need,” a requirement that applies, President Trump contends, regardless of whether the material falls within the president’s evidentiary executive privilege. Brief for Petitioner at 45; Brief for the United States at 27.

Vance counters that Article II protects the president only from criminal proceedings that would interfere with his official, rather than personal, conduct. Brief for Respondent, Cyrus R. Vance, Jr. at 12–13. Vance notes instances in the Nixon and Clinton v. Jones cases where the Court distinguished such conduct. Id. at 13. Vance quotes the Clinton Court, which reasoned that the separation-of-powers rationale for Article II’s protections applies only where it is a matter of allocating “official power among the three coequal branches.” Id. at 14. Vance draws a parallel to the scope of the president’s evidentiary privilege, which applies only to communications relating to his official capacity, not to his personal communications. Id. As to the heightened standard that President Trump and the United States would require of the subpoena, Vance agrees that such a standard would be appropriate where the material is privileged and implicates official matters, but contends that it does not apply here, where the subpoena is confined to personal records. Id. at 41. Vance contends that Article II still gives courts leeway to reject particular subpoenas as harassing or as interfering with the president’s official functions. Id. at 42–43. But Vance contends that it is the president’s burden to demonstrate such interference in the first instance. Id. at 44.

FEDERALISM AND THE SUPREMACY CLAUSE

President Trump contends that presidential immunity from criminal proceedings is “at its apex” when the subpoena is coming from a state or local government. Brief for Petitioner at 23. Article VI’s Supremacy Clause, President Trump argues, serves precisely to prevent states from interfering in the federal government’s functions. Id. at 24–25. While conceding that the Supremacy Clause protects other federal officials only from interference with their official acts, President Trump contends that the Clause must, by necessity, apply broadly to the president. Id. at 25. He argues that, given the government’s federalist framework, the Framers would never have intended to allow innumerable state and local authorities to submit the president to criminal process and thus to “prostrat[e] it at the foot of the states” (quoting McCulloch v. Maryland). Id. President Trump contends that the apparent lack of any precedent for a state opening a criminal investigation about a sitting president indicates that no one thought that states ever had this power. Id. at 28. President Trump distinguishes this case from Nixon and Clinton, which both involved federal litigation. Id. at 39–40. Whereas denying the subpoena in Nixon would have offended federal courts and the separation of powers, denying it here would only reaffirm the federal government’s supremacy, under which state interests are utterly subordinate to federal interests. Id. at 40; see Brief for the United States at 14. Indeed, President Trump notes, the Court in Clinton distinguished Clinton from a case where there would be “federalism” concerns and “possible local prejudice.” Brief for Petitioner at 40.

Mirroring his Article II argument, Vance contends that the Supremacy Clause, like Article II, grants the president immunity only as to his official acts. Brief for Respondent at 15–16. He contends that the Supremacy Clause’s structural purpose is to resolve conflicts between the federal government and the states. Id. at 15. Vance argues that when a state is investigating a president’s private conduct, however, there is no conflict and the Clause does not apply. Id. at 16. Vance contends that the Clinton Court, by expressing its concern for a case in which a state court issued the process, was likely contemplating a case where the process interfered with the president’s official duties. Id. Vance contends that the subpoena here is far removed from such concerns, since this subpoena does not so interfere and was issued to a third party. Id. On the contrary, Vance contends that the Tenth Amendment affirmatively reserves for the states any powers not expressly granted to the federal government. Id. at 32. This includes a generalized police power for a state over matters within a state’s territory, including the authority to issue subpoenas. Id.

WOULD A THIRD-PARTY GRAND JURY SUBPOENA DISRUPT EXECUTIVE FUNCTIONS?

President Trump argues that grand jury subpoenas should be among the forms of process to which presidents are immune. Brief for Petitioner at 29. Characterizing himself as the subpoena’s “target” here, President Trump contends that the subpoena interferes with his official capacity because of the mental burden and the stigma that it imposes. Id. That the subpoena is directed to his custodian is beside the point, President Trump argues; the president’s own records are still at issue. Id. at 38. The subpoena burdens him by requiring that he “consult with his attorneys, consider the need to assert available privileges, and otherwise participate in his defense.” Id. Moreover, the United States adds, some states, like New York, permit grand juries complete freedom to issue subpoenas, so long as they are even remotely relevant to a “legitimate object of investigation.” Brief for the United States at 16. Because the subpoenas risk interfering with the president’s official duties, President Trump contends that the Court has in the past, and should in this case, grant the president categorical immunity. Brief for Petitioner at 36–37. President Trump distinguishes this case from Clinton and Nixon: the subpoena here is a greater burden than the one issued to Clinton, President Trump argues, because this is a criminal, rather than a civil case; and it is greater than the one issued to Nixon because Nixon was merely a witness in that investigation, whereas President Trump is the target of this investigation. Id. at 41–42. Finally, President Trump contends that granting immunity here would not interfere with the grand jury’s investigation because the statute of limitations would likely be tolled until he leaves office. Id. at 33.

Vance counters that the “mere risk” that a grand jury subpoena will interfere with a president’s official functions does not suffice to confer immunity on the president. Brief for Respondent at 17. Vance cites several instances where the Court has compelled presidents to comply with subpoenas, including when Chief Justice Marshall rejected President Jefferson’s immunity defense and ruled that the president’s susceptibility to subpoenas “is not controverted.” Id. at 20. Vance notes that the Court made no exception to this no-immunity stance even in Nixon, where the subpoena implicated official conduct and official communications. Id. at 21. Further, Vance notes, the Court in Clinton recognized that courts could still weed out and impose sanctions for harassing requests. Id. at 18, 20. The Mazars subpoena, Vance argues, is less burdensome than the subpoena requiring Nixon to testify under oath and to produce tapes with privileged conversations with his advisors. Id. at 27. Finally, Vance disputes President Trump’s claim that grand jury subpoenas impose a stigma. Id. at 28. Vance explains that such subpoenas do not allege wrongdoing and, unlike indictments or prosecutions, are secret. Id. at 29. Vance contends that this grand jury subpoena, therefore, imposes significantly less burden than Nixon’s subpoena, which would have led him to implicate himself in a criminal conspiracy, or Clinton’s subpoena, which could have led to civil liability. Id. at 30.