Because of my father's sudden illness and death last week, I only got around to reading the Trump financial records cases and the excellent commentaries on them by Profs Buchanan (here and here) and Segall (here) yesterday, when I also produced edited versions of the cases for the supplement to the constitutional law casebook I co-edit with Profs Richard Fallon and Fred Schauer. (Prof Jesse Choper is also listed as a co-editor to reflect his enormous contributions to earlier editions.) I confess that I have not yet had a chance to read others' reactions to the cases, and so I apologize if my take repeats what others have already said.
What is my take? Simply that in reading the two cases together, I was struck by the different way in which the Court treated judges from the way in which it treated legislators. In Trump v. Vance, the Court rejects Trump's argument for absolute immunity against a grand jury subpoena and even for a requirement of heightened need, because it trusts state court judges backed by lower federal court judges (in an exception to the principle of Younger abstention) to apply the same rules that apply to everyone else with sensitivity to the needs of the President. Trump v. Mazars similarly rejects absolute immunity but, by contrast, adopts a four-part test that can be fairly summarized as roughly equivalent to the heightened-need standard rejected in Vance.
Why the difference? My null hypothesis is that the Justices, as judges, trust judges and value what courts do substantially more than they trust Congress or value what it does. I consider a couple of competing hypotheses below, but neither is sufficiently persuasive to move me off the null hypothesis that a kind of home cooking explains the different approaches in the two cases.
Before diving in, I should say that I agree with Prof Buchanan that very little of immediate practical importance was at stake in the financial records cases. Trump lost the NYC case, but because of grand jury secrecy there's little chance of any data being revealed before the election. More importantly, as Prof Buchanan argued persuasively, there's very little likelihood that damning revelations about Trump's finances would sway those otherwise inclined to vote for him. Put differently, I agree with Justice Alito about one important point: the main significance of these cases will be their impact on future presidencies. I'm almost but not quite as cynical as Prof Segall, who thinks that the test articulated in Mazars is sufficiently open-ended that so long as there's a Republican majority on the Court the operative rule will be that Republican Congresses get to subpoena Democratic Presidents but not vice-versa. In any event, I want to focus my attention here less on whether Vance and Mazars announced the proper rules than on the difference between them.
Procedurally, the cases are similar. By setting aside the ordinary Younger abstention rule--according to which federal courts do not interfere in ongoing state criminal proceedings--the Court in Vance allows that federal courts will adjudicate issues arising out of subpoenas to the President in state court criminal cases, just as federal courts will adjudicate issues arising out of Congressional subpoenas to the President. However, the substantive standards are different. The Court rejected a requirement of substantial need for grand jury subpoenas while imposing such a requirement for Congressional subpoenas. Why?
The Court's opinion in Mazars offers two main grounds. First, the Court says that Congress and the President are repeat players in an inter-branch dance, whereas a prosecutor or grand jury in conflict with the President will be a one-off. Yet this rationale seems backwards. The fact that Congress is a repeat player strongly suggests that the Court can rely on the Executive Branch and Congress to work out accommodations. And indeed, as the Mazars opinion emphasizes, that's exactly what happened heretofore. CJ Roberts effectively chastises both the House and the President for failing to follow in the footsteps of every previous Congress and President by negotiating a resolution on their own. He does not, however, draw the obvious inference that the extraordinary standoff in Mazars is unlikely to recur. Meanwhile, as Justice Alito emphasizes in his Vance dissent, a crusading prosecutor trying to make a name for himself could find the President to be a tempting target, undisciplined by the need to work together with the President on other matters in the way that Congress does. The repeat-player point does the opposite of the work that the Court thinks it does.
Second, the Court in Mazars notes that if relevance to potential legislation is the test for a Congressional subpoena--as it is with respect to persons other than the President--then there will be effectively no limit at all. As the Chief Justice writes in Mazars, "[t]he President’s financial records could relate to economic reform, medical records to health reform, school transcripts to education reform, and so on." That does seem to distinguish a grand jury subpoena, because, as the Chief writes in Vance, "grand juries are prohibited from engaging in 'arbitrary fishing expeditions' and initiating investigations 'out of malice or an intent to harass.'" This distinction is persuasive, right?
Wrong. As a formal matter, the law circumscribes the investigatory and prosecutorial power of a grand jury. As a practical matter, the subsequently disgraced Sol Wachtler's observation that a prosecutor can get a grand jury to indict a ham sandwich has largely been accepted as expressing a fundamental truth about the grand jury: it is a tool of the prosecution, not a shield for potential defendants. Just as the requirement that a Congressional subpoena be relevant to potential legislation is no real limit, so the requirement that a grand jury subpoena comply with the ordinary restraints on investigations is no real limit.
I am left, therefore, to fall back on my null hypothesis. All of the current Justices are lawyers. A couple--Justices Alito and Sotomayor--have substantial experience as prosecutors. Although many legislators are also lawyers, legal training as such focuses overwhelmingly on the input and output of courts. When legislation is considered, it is almost invariably for the purpose of discussing how judges should apply it, not how legislators go about crafting it. With the possible exception of Justices who were legislators (think Hugo Black and Sandra Day O'Connor but no one on the current Court), Justices have a comfort level with what happens in court that they lack with respect to Congress.
It remains possible that there is a principled basis for the distinct approaches in Vance and Mazars, but as a causal matter, the fact that the Justices are judges and thus trust judges more than they trust legislators could well be the best explanation for the juxtaposition in results.
Condolences for your father's illness and death, Professor Dorf! :( May he RIP. :(ReplyDelete