The man who boasted that he could “stand in the middle of Fifth Avenue and shoot somebody,” and not lose any voters, just learned that if he cheated New York state from his Trump Tower office on that same street, he might lose his liberty. Remember, even if Joe Biden wins the election in November and Trump resigns just before the end of his term, a President Mike Pence can offer pardons only for violations of federal law. Pardons for state crimes are beyond his constitutional authority.
Why am I so emphatic that this decision marks a clear Trump trouncing, given that his personal lawyer Jay Sekulow is claiming victory for his client and given how unimpressed some cable news commentators appeared right after this opinion––and a companion concerning congressional subpoenas––came down?
A little background on the Vance case first. In 2019, on behalf of a grand jury investigating whether Trump illegally falsified business records to conceal pre-election hush money payments to two women, New York County District Attorney Cy Vance served a subpoena on Mazars––Trump’s accounting firm––requesting nearly a decade of his personal and business tax returns and other financial records. In response, Trump sued in federal court to stop Vance, claiming the subpoena was unenforceable because as president he enjoyed “absolute immunity” from this and any other state’s criminal process.
Unanimous Slap-Down
On Thursday, all nine justices rejected Trump’s “absolute immunity” argument. All of them. In the otherwise 7–2 opinion, Chief Justice John Roberts wrote, “We cannot conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause.” He added, “On that point the Court is unanimous.”
Further, the seven-justice majority also held that the Constitution does not even require a “heightened standard of need” to issue a state criminal subpoena to a sitting president as compared to an ordinary person.
The bottom line: No one is above the law. Not even the president of the United States. And just by checking Trump’s Twitter feed, he seems to be lava-level mad about this message. He wants not just absolute immunity but also absolute power. Remember, he often references Article II of the Constitution (which sets out the powers and duties of the presidency) as if it confers upon him a monarchical status. “Article II allows me to do whatever I want,” he claimed. No such thing.
And the president appears terrified of anyone following his dirty money trail. With Attorney General William Barr’s help, he was able to sideline Robert Mueller. Yet Mueller didn’t even dig into the Trump family finances. It was a “red line” he respected. But Vance has already crossed over, and the Supreme Court is waving him forward.
More Trouble Ahead
Although Vance is now one step closer to obtaining the evidence he needs to pursue an indictment if warranted, he has a few more hoops to jump through. The Supreme Court sent the case back down to the district court judge, who can hear limited arguments and potentially modify, and then enforce, the subpoena. Based on the court’s guidance, Trump will have very little room to maneuver. He can only quash the subpoena if he can establish that compliance with the subpoena would interfere with his official duties. We should expect Vance to prevail and Trump’s accounting firm, Mazars, to soon hand over the records. An indictment before the election is possible, although not probable.
The Vance decision may also impact a number of seemingly separate matters, including a civil case brought by E. Jean Carroll seeking the president’s DNA in connection with a rape allegation, and a document production in another defamation case linked to his alleged sexual harassment of Summer Zervos, a former Apprentice contestant. This is because while Trump’s view of presidential immunity was suspect in light of the Clinton v. Jones precedent, the Vance matter involved a state proceeding, as do the cases involving Carroll and Zervos.
While less decisive a win, we should also celebrate the opinion in the companion case, Trump v. Mazars. In that opinion, which was consolidated with Trump v. Deutsche Bank and Capital One, the court addressed for the first time whether congressional subpoenas for presidential information exceeded the House’s constitutional authority. The court rejected Trump’s argument that the House would have to establish a “demonstrated, specific need” for the financial information. This case was remanded so the lower court could meet new criteria that better accounted for the separation of powers concerns.
Back on Fifth Avenue
In a montage like something the talented showrunners at Succession might dream up, just as the Supreme Court stood up to Trumpism, a group of New Yorkers gathered in front of Trump Tower on Thursday and began painting in bright yellow block letters the words “Black Lives Matter.” Among the volunteer painters were members of the Exonerated Five, the men who, as young teenagers, were wrongly convicted in the Central Park jogger case. At the time, in 1989, Trump had paid for a full-page ad in four New York City newspapers calling for the return of the death penalty for them.
In that advertisement, Trump wrote, “I am not looking to psychoanalyze or understand them, I am looking to punish them.” We feel the same about you, Mr. President. Same.
Jennifer Taub is a law professor, advocate and commentator focusing on corporate governance, financial market regulation and white collar crime. Taub’s new book, Big Dirty Money (Viking), will be on sale September 29.
The views expressed in this article are the author’s own.
