In last week’s decision in Trump v. Vance[1], the Supreme Court addressed for the first time whether a state District Attorney’s Office can issue a state criminal subpoena to a President. Relying on historical examples dating as far back as Aaron Burr in 1807, the Supreme Court held that Article II of the United States Constitution and the Supremacy Clause do not categorically preclude, nor categorically require, a heightened standard for the issuance of a state criminal subpoena to a sitting President. While this landmark decision sets important precedent for potential future state criminal subpoenas, the Court’s decision to remand to the lower courts for further proceedings means that none of the documents covered by the subpoena will be provided to the New York County District Attorney’s Office any time soon.
The Court’s opinion, written by Chief Justice John Roberts and joined by Justices Ginsburg, Breyer, Sotomayor and Kagan, with Justices Kavanaugh and Gorsuch writing a concurring opinion, rejected President’s Trump’s argument that Article II of the United States Constitution and the Supremacy Clause categorically preclude or categorically require a heightened standard for the issuance of a state criminal subpoena to a sitting President. Significantly, the Supreme Court unanimously agreed that the President is not entitled to absolute immunity from a state criminal subpoena and unanimously agreed that the case should be remanded to the lower courts where the President can raise objections to the subpoena because the specific, narrow question before the Court was whether the President was entitled to immunity from the issuance of the subpoena.
Although this alert focuses on the Vance state criminal subpoena, the impact of this case is best understood in conjunction with the Trump v. Mazars opinion, issued at the same time, which affirmed Congress’s authority to conduct investigations in support of its power to consider and enact legislation in which Congress was seeking similar records related to President Trump. While the Court was clear that a President does not enjoy the absolute immunity that President Trump and the Solicitor General argued for, the Court expressed concern over the demand on the President’s time that compliance with these subpoenas would entail, and the potential for abuse. As addressed in more detail below, the Court, without articulating a precise standard, remanded the case back down to the district court for the district court to rule on the President’s specific objections to the subpoena.
Background
The New York County District Attorney’s Office, in the summer of 2018, opened an investigation into “business transactions involving multiple individuals whose conduct may have violated state law.[2]” In 2019, on behalf of a grand jury, served a subpoena duces tecum (request for documents) on Mazars USA, LLP, the personal accounting firm of the President.
Acting in his personal...
