The Second Circuit Court of Appeals issued their decision in the Trump tax return case (Trump v. Vance), which determined President Trump was required to comply with a New York grand jury subpoena.
Cyrus Vance Jr., the Manhattan district attorney, served several grand jury subpoenas as a part of his larger investigation into The Trump Organization. At first, The Trump Organization cooperated, but then they began “resisting” the subpoenas. Notably, the private accounting firm Mazars USA LLP was ordered to hand over Trump’s personal and business financial records, including his tax returns.
President Trump filed suit in the district court for the Southern District of New York, seeking to block the subpoenas by declaratory judgment and permanent injunction, citing executive privilege and immunity. The District Court ruled against Trump on jurisdictional grounds, and the Second Circuit affirmed, but for different reasons. Not only is the court’s cautious ruling an attempt at avoiding Supreme Court interference, but it is also judicial tiptoeing around the overarching, tough questions.
Team Trump presented two main arguments: First, the president cannot be indicted while in office, so he is temporarily immune from all stages of the state criminal process until he is out of office. Second, President Trump’s tax returns are confidential under the executive privilege doctrine.
The court dismissed both arguments. In this case, the subpoena targets the president’s personal financial information, which the court finds separate from his official, privileged conduct as president.
However, this case is a difficult one because of the precedent it sets. According to this ruling, individual states can criminally investigate the sitting president of the United States via grand jury subpoenas, which is better than the alternative where – as Trump’s lawyers infamously argued – the president could shoot someone on Fifth Avenue and avoid all investigation or punishment while in office.
Now imagine, with every new president, partisan states open wide-ranging and politically damaging criminal investigations into presidents of unfavorable party affiliations. Using the state’s criminal investigative powers for political purposes seems like such a terrible, inevitable outcome. However, on the other hand, we cannot allow unchecked presidential criminal conduct.
If the Supreme Court takes on this case, then they’ll likely try and avoid further difficult questions – like whether a sitting president can be criminally indicted – but the Roberts Court has additional considerations.
If the Court overrules the Second Circuit, the Court will undoubtedly face accusations of acting partisan. The reputation and legitimacy of the Court is of vital importance to Chief Justice John Roberts, so he likely wants to avoid the problems this case brings. Conversely, as some believe, other justices might feel compelled to weigh in on an important issue and not allow the Court to avoid its constitutional responsibilities. It’s questionable whether there are enough votes to grant certiorari, which would allow the Supreme Court to review the Second Circuit Court’s decision, so it’s doubtful the Second Circuit’s narrow decision will be reversed.
This case deals with difficult issues of state powers, presidential immunities and criminal law, but we shouldn’t cast aside concerns of future state investigational misuse. It’s important to discourage political actors from engaging in politically driven criminal investigations. As Democrats investigate President Trump for potentially abusing his presidential powers for personal, political purposes, we must remain principled here.
If Democratic politicians advocate criminally investigating opponents for political purposes, we must object. If Republican politicians advocate criminally investigating opponents for political purposes, we must object. We hold the power here. With our votes and voices, we must decry any attempt to use the powers of government purely for political purposes, even when we dislike the investigation’s target. We have the ability to create a political environment where prosecutors open phony investigations only to disparage wrong-party political actors. Whether we can control our impulses remains to be seen.
