President Donald Trump’s fight-all-the-subpoenas strategy finally reached the Supreme Court late Thursday, putting the justices in the middle of a heated legal fight over the limits for investigations into a sitting president.
Trump’s attorneys asked the Supreme Court to reverse an order from a federal appeals court in New York that requires accounting firm Mazars USA to comply with a state subpoena for Trump’s financial and tax records.
Trump’s petition argues that he and other presidents should be “categorically immune from state criminal process,” in part because it could empower a single state or local prosecutor to “circumvent the Constitution’s specific rules for impeachment.”
And another Trump lawsuit related to Mazars, one centered on congressional power to enforce subpoenas during impeachment or other oversight probes, will land at the Supreme Court on Friday, said Jay Sekulow, an attorney for Trump. In that case, the full U.S. Court of Appeals for the D.C. Circuit on Wednesday declined to reconsider an earlier decision that Mazars must comply with an April 15 subpoena from the House Oversight and Reform Committee.
Trump’s lawyers said they also would appeal the D.C. Circuit ruling to the Supreme Court, setting up a major separation-of-powers dispute since Trump announced his strategy to not comply with many congressional oversight efforts.
House Democrats have not agreed to delay enforcement of that subpoena during the court fight, so Trump’s attorneys first will have to ask the Supreme Court for a stay to stop the production of records. How the justices respond to that request will give clues about how the Supreme Court will handle the two cases.
The court would have to act quickly on the congressional lawsuit. House Speaker Nancy Pelosi said Thursday that those Mazars records could come to lawmakers in as soon as seven days, unless House Democrats give accommodations. The committee’s subpoena seeks eight years of Trump’s financial records.
“Congress and the rule of law had an important victory as the courts once again resoundingly reaffirmed Congress’ ability to conduct oversight of the executive branch on behalf of the American people,” Pelosi said.
The D.C. Circuit decision rejected Trump’s argument that the committee did not have a legitimate legislative purpose to seek the records from both before and after he took office. Instead, the 2-1 majority found that both the House rules and the Constitution, as well as prior court rulings, give the House broad authority to get records from a nongovernment custodian of the president’s financial information.
Trump will need the votes of five of the nine justices to put a hold on the D.C. Circuit ruling that backs Congress. There are five justices in the conservative wing of the court. If that happens, it is likely the Supreme Court will agree to decide either the state or congressional cases and rule by the end of the term in late June, University of Texas law professor and appeals court watcher Steve Vladeck said.
“But if the Court denies a stay, even by a 5-4 vote, that would be a huge setback for Trump, and a pretty powerful sign that, whether the Court ends up taking one or both cases on the merits or not, the cases are quite likely to end with him losing,” Vladeck tweeted.
In both cases, Trump took the legal action to stop the companies from turning over the records to the grand jury or House Democrats.
In the appeal at the Supreme Court on Thursday, the U.S. Court of Appeals for the 2nd Circuit ruled that “presidential immunity” does not bar the enforcement of a state subpoena, “even when the subject matter under investigation pertains to the President.”
The grand jury is investigating whether several individuals and entities have committed state crimes. The subpoenas to Mazars do not require the president to do “anything at all,” the 2nd Circuit ruling stated.
Trump’s petition argues that the state subpoena, the first time in history that a state or local prosecutor has launched a criminal investigation of a U.S. president, is “almost a word-for-word copy” of subpoenas issued by committees of Congress for these same papers.
Such state subpoenas violate the Constitution because they interfere in a president’s ability to execute his duties and “empower thousands of state and local prosecutors to embroil the President in criminal proceedings,” the petition states.
And Trump’s petition argues that allowing the state subpoena would interfere in the Constitution’s process for investigating and removing a president: “It would allow a single prosecutor to circumvent the Constitution’s specific rules for impeachment.”