Recently, the United States Supreme Court issued two opinions concerning the ability of different entities to issue subpoenas to a president. As the two cases involved different entities issuing subpoenas, the opinions treated them very differently.
The first case, Vance, involved a state grand jury subpoena. Over the years, the Supreme Court has considered a significant number of cases involving subpoena. Some involved subpoenas issued to private parties. Others considered federal criminal subpoenas issued to the president. The Supreme Court has also considered federal civil cases involving a president. The sum total of these prior cases is that there are rules limiting the issuance of a subpoena. In light of these cases, the Supreme Court decided that there was no blanket exemption that permitted a president to challenge a state grand jury subpoena. Nor is there a significantly different standard when the case involves a president. Instead the ordinary considerations (whether the subpoena is appropriately designed to seek information relevant to the inquiry) usually control. However, while it is not a heightened standard, a court should consider the degree to which the subpoena may interfere with presidential duty in determining whether to grant any relief from the subpoenas. In other words, the State does not need to make a different showing to justify a subpoena to a president than it would to justify a subpoena to an average business, but the president may have unique grounds that he can raise to block the subpoena.
The judge hearing the case seeking to quash the grand jury subpoena has already begun the process for considering any new objections that the president may raise (and the Supreme Court has issued its judgment in that case early). So we may get a final decision soon. However, the material will then be part of the confidential grand jury case. Thus, any financial records will not be public in the near future.
The other case, Mazars, involve congressional subpoenas. Here, the Supreme Court saw the potential for both sides to take extreme positions with regards to subpoenas. The Constitution creates an inherent conflict between the legislative and executive branch, and that conflict increases when one party controls at least one House in Congress and different party controls the White House. In short, subpoenas will often be issued for political reasons (which are not necessarily illegitimate) rather than for strictly legislative or oversight reasons. In fact, the line between political harassment and legitimate oversight can be very thin. On the other hand, a president might oppose legitimate subpoenas because the materials contained therein will make the president look bad if the public knew the truth.
Facing these competing concerns, the Supreme Court identified the factors that trial courts should consider in deciding whether to quash a congressional subpoena. First, the court should look at the relationship between the subpoena and the asserted legislative purpose. In particular, the court should consider whether there are other sources that could provide the type of information being sought. Second, the court should consider whether the subpoena is appropriately narrowly tailored to the legislative purpose. Third, the court should consider the strength of the evidence/explanation for why Congress wants the information (i.e. can Congress identify what specifically it is concerned about and what options it is considering for legislation). Fourth, a court should consider how burdensome the subpoena is on the president. These factors are not necessarily exclusive, but rather are the type of questions that a court should ask in determining whether the subpoena is legitimate. These considerations impose a lesser burden for Congress to meet for ordinary subpoenas than the burden that would apply if there was a question of executive privilege.
It is unclear what the decision in Mazars will mean for the release of Trump financial records. As the opinion suggests, we are in a unique situation. Normally, a president is not also the owner of a large private business. Most subpoena requests are for executive branch information which has led to negotiations over what Congress really needs and what the executive is willing to disclose. This decision will now be part of the backdrop of negotiations (as both sides think about how this test would apply if they take an extreme stance in the negotiations), but those disputes will typically end with some agreement. It does not seem likely that there will be any agreement in this dispute, however, as Congress wants to see what Trump desperately wants kept secret. So, it is likely that Trump will do everything in his power to prevent the disclosure of those records for as long as he can. And we can only speculate on what in those documents is making Trump fight this hard to prevent their release.
