Supreme Court rules Trump does not have "absolute immunity" in tax case: "No one is above the law"

Trump nominees Gorsuch and Kavanaugh agree with liberals that Trump has no "absolute immunity" from tax subpoenas

By Igor Derysh

Managing Editor

Published July 9, 2020 10:24AM (EDT)

Donald Trump | Taxes (Photo illustration by Salon/Getty Images)
Donald Trump | Taxes (Photo illustration by Salon/Getty Images)

This article has been updated since it was first published.

The Supreme Court ruled on Thursday that President Donald Trump is not immune from Manhattan District Attorney Cy Vance's subpoena for his tax returns but punted on whether House Democrats may also view the documents.

Chief Justice John Roberts and Trump-appointed Justices Neil Gorsuch and Brett Kavanaugh joined with the court's four liberal justices in the 7-2 decision in the Vance case. Justices Samuel Alito and Clarence Thomas dissented.

But the court remanded the case to lower courts, meaning that the legal battle is far from over. Vance possibly may not obtain the tax returns until after the election. Also, the tax returns would not be made public as they would be released to a grand jury, which is secret.

"No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding," Roberts wrote in the majority opinion. "We affirm that principle today and hold that the president is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need."

"In our judicial system, 'the public has a right to every man's evidence.' Since the earliest days of the republic, 'every man' has included the president of the United States," he added.

Kavanaugh and Gorsuch, writing in a concurrent opinion, similarly rejected Trump's claim of absolutely immunity but argued that the president could make more valid arguments on remand.

"In our system of government, as this court has often stated, no one is above the law," the opinion said. "That principle applies, of course, to a president."

Alito, in a dissenting opinion, argued that presidents should not be subject to prosecution while in office, because "the nature of the office demands in some instances that the application of laws be adjusted at least until the person's term ends."

The court similarly ruled 7-2, with Roberts, Kavanaugh and Gorsuch joining the liberals, to punt on whether House Democrats may view the president's tax returns and financial records. The court ruled that Congress does have the power to subpoena the financial records, though it sent the case back to lower courts to more carefully assess "separation of powers concerns."

"The House's approach would leave essentially no limits on the congressional power to subpoena the president's personal records," the majority opinion said. "A limitless subpoena power could transform the established practice of the political branches and allow Congress to aggrandize itself at the president's expense."

The ruling called for lower courts to "take 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."

The court effectively ruled in both cases that Trump's objections to the subpoenas were too broad, but left the door open for him to bring different objections on remand.

"The Supreme Court sends case back to Lower Court, arguments to continue. This is all a political prosecution," Trump tweeted following the ruling. "I won the Mueller Witch Hunt, and others, and now I have to keep fighting in a politically corrupt New York. Not fair to this Presidency or Administration!"

"Courts in the past have given 'broad deference'. BUT NOT ME!" he complained.

Vance immediately announced that the investigation within the Manhattan district attorney's office would resume. 

"Our investigation, which was delayed for almost a year by this lawsuit, will resume, guided as always by the grand jury's solemn obligation to follow the law and the facts, wherever they may lead," Vance said after the ruling.

Vance obtained a grand jury subpoena for eight years of Trump's tax returns and financial documents from Trump's longtime accounting firm, Mazars USA, and the Trump Organization. Mazars has long said it would provide the tax returns. However, Trump's attorneys sued, offering a novel argument that the president had "absolute immunity" from all criminal prosecutions.

The court rejected that argument. During oral arguments, justices compared the lawsuit to the case of former President Bill Clinton, who was ordered to turn over financial records in the Whitewater investigation as president, and former President Richard Nixon, who had to turn over audio recordings in the Watergate investigation.

"This court has long recognized," Vance said in his argument, "that a sitting president may be subject to a subpoena in a criminal proceeding."

Vance is probing whether Trump and his company violated any New York laws when they reimbursed longtime former Trump "fixer" Michael Cohen for hush money payments made to adult film actress Stormy Daniels and model Karen McDougal during the 2016 campaign. Cohen pleaded guilty to campaign finance charges in the scheme, along with other federal crimes, and was sentenced to three years in prison.

Trump's lawyers claimed that the president had total immunity from investigations and could not be "treated as an ordinary citizen," because he was too busy running the country. However, that argument was met with heavy skepticism from the bench.

The court separately heard Trump's lawsuit against the House Oversight Committee, which is investigating the hush money payments and whether Trump inflated or understated his assets on financial documents in order to obtain loans and reduce his tax burden, and subpoenas from the House Financial Services and Intelligence Committees, which sought numerous financial records related to Trump, his family and his company from Mazars and Trump lenders Deutsche Bank and Capital One.

The House argued that the information was necessary in order for it to conduct its oversight authority, while Trump's lawyers argued that the subpoena was illegitimate and politically motivated. But House lawyer Douglas Letter had few good answers on the scope and limits of oversight, leading to several contentious exchanges with justices during oral arguments.

Thursday's ruling came after Roberts joined the liberal justices to vote against Trump's attempt to rescind DACA, uphold abortion rights in Louisiana and protect LGBTQ Americans from workplace discrimination. Trump lashed out following the rulings.

"These horrible & politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people that are proud to call themselves Republicans or Conservatives," he tweeted last month.

In another tweet, he asked: "Do you get the impression that the Supreme Court doesn't like me?"

By Igor Derysh

Igor Derysh is Salon's managing editor. His work has also appeared in the Los Angeles Times, Chicago Tribune, Boston Herald and Baltimore Sun.

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