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Is the President Absolutely Immune From A State Grand Jury Subpoena?

by | May 8, 2020 | Entertainment, Sports, & Media Law


Winston Churchill wrote a biography of his ancestor John Churchill, who is better known as the Duke of Marlborough. Describing the period of conflict spanning the demise of Cromwell’s government and the restoration of Charles II to the throne, Churchill wrote: “This was a civil war whose battles and sieges … were represented by state trials, constitutional deadlocks, and parliamentary or municipal maneuvers. It was a war for public opinion and as bitter and ferocious as many waged in the open field.” Churchill could have been describing our own country during the last four years. Perhaps the case of Trump v. Vance is a yet another partisan action in our ongoing “civil war.”   

The Supreme Court’s oral argument by teleconference is scheduled for May 12. In due course, the Court will decide whether the grand jury investigation launched by the Manhattan District Attorney is a legitimate exercise of prosecutorial power. By way of background, Democrats have been pursuing strategies to force President Trump to disclose his tax returns.  Some states controlled by Democrats have enacted laws excluding a candidate’s name from primary elections unless the candidate discloses his or her tax returns, and such laws were aimed in part at President Trump. There is a constitutional issue with such laws.  Under federal law, federal tax returns are confidential, and state laws requiring disclosure of federal tax returns could run afoul of the Supremacy Clause. Art. VI, Cl. 2.  New York jumped into this fray by enacting a law requiring the state’s tax department to release the returns of state and federal elected officials, although that law cannot reach President Trump’s federal tax returns which are not filed with the state tax department. A grand jury subpoena could be another way to get President Trump’s tax returns. 

In the summer of 2018, Cyrus Vance, the district attorney for Manhattan, initiated a grand jury investigation of Trump’s business transactions and tax strategies and “hush” money payments allegedly made to certain women. Mazars is an accounting firm that has prepared financial statements and tax returns for Trump’s businesses and Trump’s personal tax returns. In August 2019, the grand jury in New York issued a subpoena to Mazars for financial and tax records of Trump and his companies, starting from January 2011. The subpoena did not demand documents concerning Trump’s official presidential conduct nor did it demand that Trump himself produce anything. The subpoena was virtually identical to two subpoenas issued by two congressional committees.

President Trump sued Mazars in federal court to prevent release of the documents. The District Court denied an injunction under the ‘abstention doctrine’ of Younger v. Harris, which precludes federal intrusion into ongoing state criminal prosecutions. Younger has an exception allowing injunctions to stop a prosecution conducted for harassment or bad faith, which would include a politically motivated prosecution. The District Court found there was no bad faith justifying issuance of an injunction. The court also rejected Trump’s claim of absolute immunity, while in office, from a state grand jury subpoena directed at his private activity. 

The Second Circuit Court of Appeals rejected application of the Younger doctrine to a case involving the President, but similarly upheld the denial of an injunction because the President had not shown a likelihood of success on the merits. The Court of Appeals said the President is not absolutely immune from all stages of state criminal process, especially a subpoena issued to a third-party for non-privileged material.  

President Trump argues he has absolute immunity while in office from any state criminal process. Under Article II of the Constitution, the President has sole executive power.  President Trump asserts that state criminal investigations interfere with the President’s ability to perform his executive duties, and such interference violates the Supremacy Clause, Art. VI, Cl. 2. It has long been generally recognized that states cannot defeat the legitimate operations of the national government. McCulloch v. Maryland, 17 U.S. 316 (1819). Allowing state grand jury subpoenas could result in a tsunami of politically motivated investigations by the President’s political opponents, distracting and stigmatizing the President and interfering with his ability to perform important duties relating to domestic and foreign policy.  

President Trump, however, does not have strong arguments for absolute immunity. It is long-settled that the President is subject to judicial process in appropriate circumstances. Clinton v. Jones, 520 U.S. 681, 703 (1997).  Presidents have been ordered to give deposition testimony and to provide information in response to subpoenas. The Supreme Court has also upheld the exercise of jurisdiction over the President when necessary to vindicate the public interest in an ongoing criminal prosecution. United States v. Nixon, 418 U.S. 683 (1974). The President has no categorical immunity from an investigation of the President’s private conduct. Clinton v. Jones.  President Trump argues that the pending state criminal investigation will distract him from the performance of his constitutional duties under Article II. The President’s argument rests on the potential for interference, and that potential alone does not appear to justify absolute immunity.  After all, the President has no absolute immunity even for official conduct. United States v. Nixon, 418 U.S. at 686. If Executive Privilege did not preclude enforcement of a subpoena in United States v. Nixon, why should a court enjoin a subpoena to a third-party not demanding privileged information or concerning official conduct?  

There is also a distinction between an investigation on the one hand and an indictment and prosecution on the other. An indictment is far more stigmatizing than an investigation.  President Nixon was an unindicted coconspirator which carries a far greater stigma, and yet that did not preclude enforcement of the subpoena in his case.  Here, there is no factually supported claim of actual interference, and the mere potential risk of interference should not be enough to justify an across-the-board rule of absolute immunity, especially from investigation of the President’s own private conduct. President Trump has not explained specifically how the burden or distraction of a third-party subpoena would interfere with the performance of his Presidential duties.  If the President shows an impermissible burden on his Article II functions, then he can challenge the state action in that specific case, but there is no reason for an absolute rule of categorical immunity which would impinge on the principles of federalism and the traditional functions of the grand jury. That is too far a reach.   

Although the President does not have strong constitutional arguments for absolute immunity, there is a troubling side to this case. The political context of the grand jury investigation raise a suspicion that this may be a politically motivated fishing expedition.  Democrats have made no secret that they want to remove President Trump from office or, failing removal, get damning evidence against him to harm his chance of re-election. Petitioner’s brief quotes New York’s Attorney General promising to “begin . . . an investigation into the Trump Administration with respect to his finances in the State of New York” and bring “the days of Donald Trump . . . to an end.”  She boldly stated that she “would join with law enforcement and other attorneys general across this nation in removing this president from office.”   Such incendiary statements by New York’s top prosecutor indeed suggest a political motive for the grand jury investigation, which is concerning. Criminal investigations should not be tainted by political motives.  Criminal prosecutions should be free of politics. 

The District Court held that the subjective motive of the state official actually conducting the prosecution determines whether the prosecution is conducted in bad faith. The statements cited by the President do not reveal the subjective motive of District Attorney Vance in initiating the investigation, particularly when Vance made none of these statements himself.  Moreover, the parties agree that the grand jury is investigating whether several individuals and entities have committed criminal violations of New York law.  As the District Court noted, the President has not alleged that D.A. Vance lacks a reasonable expectation of obtaining an indictment against someone other than the President in the criminal prosecution of which the Mazars subpoena is a part. It is therefore possible but unlikely that President Trump will prevail on his argument of improper political motive.  

President Trump also argues that Vance must establish a heightened need for the records demanded by the subpoena.  He contends that Nixon, 418 U.S. at 713, requires a prosecutor to prove a “demonstrated, specific need” for material demanded in a subpoena directed at the President’s records.  The records must be directly relevant to issues that are expected to be central to the case and not otherwise available.  The Court of Appeals rejected that argument, holding that the heightened need standard applies only when the President asserts executive privilege.  Here, he is citing absolute privilege.  The Supreme Court, however, has recognized that an investigation demanding records of a sitting President cannot proceed in the same way as against an ordinary individual.  Nixon, 418 U.S. at 708.  The President argues that Vance cannot meet the specific need standard for demanding President Trump’s records.  The President has a better chance of prevailing on the issue of heightened need, as a prerequisite to enforcing the subpoena, than on his claim of absolute immunity.  

On 12 May, we will get a glimpse of how the Supreme Court Justices view these critical issues of absolute immunity, political motivation, and heightened need. Stay tuned.

John Polk is a Special Counsel at Berenzweig Leonard, LLP. John can be reached at [email protected].