In two 7-2 decisions written by Chief Justice John Roberts, the Supreme Court ruled Thursday that Donald Trump does not have categorical immunity to withhold his financial records in a criminal investigation, nor can he withhold them from Congress. Both cases were sent back to lower courts for further proceedings, however, and are not immediate victories against Trump. Except for the part where his boys Neil Gorsuch and Brett Kavanaugh agreed that he’s not the king. Ouch.
“Presidents from Monroe to Clinton have accepted Marshall’s ruling that the Chief Executive is subject to subpoena and have uniformly agreed to testify when called in criminal proceedings,” Roberts wrote in the Vance case, in which a New York grand jury had subpoenaed his records.
Roberts held that the subpoena can be enforced as long as it doesn’t interfere with Trump’s constitutional duties, meaning Trump will have to come up with an argument other than presidential immunity in the lower court to block the subpoena. “Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President,” Roberts concluded.
The justices also agreed with House Democrats that Congress has the power to subpoena the president’s financial records but ruled that the lower courts must “take adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the unique position of the President.” In essence, this punts the matter by sending it back to the lower courts for further consideration. In practice, the decision means that the House is unlikely to get Trump’s tax returns before the election.
The subpoena processes in both the New York case and Congress’ case will continue, but the subpoenas will not be enforced immediately. This will allow Trump to continue to fight, and it will likely mean these records aren’t available until he’s no longer president. However, it means Trump’s claim of absolute executive immunity has been rejected by everyone on the Supreme Court, except Clarence Thomas and Samuel Alito.