The President is not a king: Why the Supreme Court said Trump can’t keep his financial records secret
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On the last day of its term, the Supreme Court released opinions in a pair of blockbuster cases about whether President Trump can refuse to supply financial records related to alleged “hush money” payments he made to an adult film star.
The court ruled against the President by a 7–2 margin, rejecting arguments that Trump is immune from criminal subpoenas or that a special legal standard applies to such requests.
The decision of the majority was written by Chief Justice John Roberts and reads in part like a subplot of Hamilton. It opens with a long account of how former Vice President Aaron Burr sought to subpoena President Thomas Jefferson while defending himself against charges of treason related to an alleged plot to wage war with Spain against the U.S.
In the Burr case, Chief Justice John Marshall held that the President was like any other citizen and could not refuse to participate in a legal process that bound everyone else in the country.
In the first of Thursday’s decisions, Roberts takes up Marshall’s refrain and explained why a king may have been able to hold himself above the rule of law, but that a President could not.
“At common law the ‘single reservation’ to the duty to testify in response to a subpoena was ‘the case of the king,’ whose ‘dignity’ was seen as ‘incompatible’ with appearing ‘under the process of the court,’” wrote Roberts. “But, as Marshall explained, a king is born to power and can ‘do no wrong.’…The President, by contrast, is ‘of the people’ and subject to the law.”
The Roberts decision then goes to cite a series of occasions when other Presidents submitted to subpoena requests: President Grant sitting for a deposition involving whiskey runners; President Ford testifying in response to a subpoena from his would-be assassin; President Carter providing evidence related to a gambling controversy that arose when he was governor of Georgia.
Thursday’s Supreme Court decision then invokes two high-profile precedents from its own docket, involving presidents Nixon and Clinton, in which it upheld Marshall’s ruling from 200 years ago.
For practical purposes, Thursday’s rulings mean President Trump can’t invoke a general immunity to withhold the financial records, which are in the custody of banks and his accounting firm. But at the same time, the rulings don’t mean that the public will see those records anytime soon.
That’s because Roberts ruled in such a way that the two parties seeking the records—New York’s attorney general and a congressional subcommittee—must engage in further legal proceedings to get them. The upshot is that the records are unlikely to see the light of day until after November’s election.
Legal commentators on Twitter observed that Thursday’s decisions amounted to a victory for the rule of law but also allowed Roberts to keep the Supreme Court from having an immediate impact on the current election season.
John Roberts has punted masterfully. A New York grand jury will see Trump's tax returns, but the information will likely remain secret to the outside world. The House *might* get Trump's financial records eventually, but will remain mired in the lower courts for months.— Mark Joseph Stern (@mjs_DC) July 9, 2020
In both rulings, two Trump-appointed justices—Neil Gorsuch and Brett Kavanaugh—sided with the majority. Two other conservative justices, Clarence Thomas and Samuel Alito, wrote a dissenting opinion that warned the majority opinion would let states “run roughshod” over the functioning of the executive branch.