The U.S. Supreme Court ruled 7-2 on Thursday in Trump v. Mazars USA, LLP that the House of Representatives cannot demand that the president hand over his tax returns — the opposite of the result it reached in Trump v. Vance, a separate decision on the same day, in which it said New York City prosecutors can obtain his tax returns for an investigation.
In Vance, the Court ruled that the president is not above the law, and that there is no heightened standard for subpoenas of a sitting president by ordinary prosecutors. But in Mazars, the Court ruled that the House cannot simply demand any documents it wants, because of the separation of powers.
Chief Justice John Roberts wrote the opinions for the Court in both cases. Trump’s appointees — Justices Neil Gorsuch and Brett Kavanaugh — joined the majority. The dissenters were Justices Clarence Thomas and Samuel Alito in both.
Mazars involved an effort by Democrats to obtain Trump’s personal financial records — and those of his family — by suing a private accounting firm.
Roberts summarized the case:
We have held that the House has authority under the Constitution to issue subpoenas to assist it in carrying out its legislative responsibilities. The House asserts that the financial information sought here—encompassing a decade’s worth of transactions by the President and his family—will help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections. The President contends that the House lacked a valid legislative aim and instead sought these records to harass him, expose personal matters, and conduct law enforcement activities beyond its authority.
He noted that such disputes between the legislative and executive branches were typically resolved through negotiation, not through the courts.
Roberts went on to note that while Congress has no formal subpoena power under the Constitution, the Courts have allowed it for legislative purposes. But Congress does not have subpoena power for the purposes of law enforcement, and the targets of congressional subpoenas still have their constitutional rights, including executive branch prerogatives.
While he rejected the president’s argument that there should be a heightened standard for subpoenas of the president, the president did have additional separation-of-powers concerns that an ordinary defendant would not.
Far from accounting for separation of powers concerns, the House’s approach aggravates them by leaving essentially no limits on the congressional power to subpoena the President’s personal records. Any personal paper possessed by a President could potentially “relate to” a conceivable subject of legislation, for Congress has broad legislative powers that touch a vast number of subjects. … Without limits on its subpoena powers, Congress could “exert an imperious controul” over the Executive Branch and aggrandize itself at the President’s expense, just as the Framers feared.
Roberts went on to describe a list of considerations that lower courts should have weighed:
- “First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.”
- “Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.”
- “Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.”
- “Fourth, courts should be careful to assess the burdens imposed on the President by a subpoena.”
The Court remanded the case back to the lower courts to consider the House subpoena request with these in mind.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.