A troubled presidency, America knows from Richard Nixon’s sad demise, can collapse in a hurry, especially if the Supreme Court is unwilling to bend the rules to rescue such a regime. From a ruling against him by the Court on July 24, 1974, a mere 15 days passed before Nixon resigned under a threat of impeachment over the “Watergate” scandal. His shame at being history’s first to resign that office was not erased when, a month later, he was pardoned of all federal crimes by his successor, President Gerald Ford.
Today was the day the Supreme Court, again refusing to bend the constitutional rules for a beleaguered President, set in motion what may turn out to be the collapse of Donald Trump’s presidency. Whatever parallels do develop between Trump’s situation and Nixon’s, there is a stark difference: even a potential pardon cannot insulate President Trump from facing a criminal trial and the real chance of a guilty verdict, sooner or later.
That unprecedented situation is what makes the Court’s decision at mid-morning today in a New York state criminal case more important, historically and legally, than its second ruling a few minutes later. That second decision also ranks as historic, because potentially it may put an end to President Trump’s across-the-board resistance to investigations by Congress into his personal finances, as well as into his performance of official duties.
Since impeachment of Trump for official acts failed in the Senate quite recently, on February 5, it does not seem likely that the Democrats in Congress would try again to remove him from office by repeating that constitutional process. As of now, there does not appear to be enough new about the President’s conduct to lead many Republican Senators to turn against him, although no one in Congress knows at this point what new might turn up when today’s Supreme Court decisions are actually implemented.
And, while the situation obviously could change, the President’s continued refusal to admit any fault or error seems to make it quite unlikely that he will resign. Moments after he learned of the Court’s action today, he filled his Twitter feed with a tirade toward his favorite verbal targets, leaving no hint of remorse.
But even if he were to reach a bargain with Vice President Mike Pence to resign, have Pence take over and issue a pardon, such official forgiveness can only apply to federal crimes, not to any crimes under state law that may emerge in the New York grand jury investigation that the Supreme Court has now allowed to proceed.
There may be some further legal wrangling, in New York state courts and perhaps even in a federal court, over the subpoena for Trump’s personal financial papers, including federal and state tax returns, but the case can go forward now. That is because the Supreme Court rejected the President’s claim that he had total immunity to any such state probe. His lawyer had told a lower court that a state prosecutor would be unable even to investigate a President if he were to murder someone while in office. That turned out today to be a legally empty claim.
The grand jury’s demand for Trump Organization and personal records, including eight years of tax returns, is not likely to produce an immediate turnover of those papers. The Supreme Court recited in its ruling a series of legal defenses that the President’s lawyers may now make to try to scuttle the subpoena altogether. That could take time, although Manhattan District Attorney Cyrus Vance can seek to move the matter along.
Even though the rules of a grand jury generally forbid public disclosure of the evidence that such a panel considers in deciding whether to make charges, the mere fact that its investigation will proceed will raise the visibility of the threat to Trump and his presidency as this year’s election campaign continues to unfold.
Similarly, it does not appear that the dispute over subpoenas by congressional committees for Trump’s personal and business papers will be resolved prior to the election on November 3. The Court went to considerable lengths to guide lower courts on how closely they must examine why Congress believes it needs those documents, and what kind of future legislation might grow out of having access to them. There is little doubt that the leaders of the Capitol Hill panels will begin promptly to shore up their reasons for seeking the materials, but they would not be able to control the pace of the coming courts’ review.
If Trump does not step aside, there are now 118 days until the voters go to the polls on the first Tuesday of November. The likely Democratic nominee, former Vice President Joe Biden, already has sought to turn this campaign into a challenging referendum on President Trump, and Biden and his surrogates no doubt will intensify their attacks now that the President is fully exposed to potential criminal prosecution.
It would be a misreading of what the Court did today, in either the criminal case or the congressional subpoenas case, do suggest that it, too, had joined in the critique of Donald Trump, his actions or his personal behavior. In fact, Chief Justice John G. Roberts, Jr., who wrote both of the leading opinions, showed a deep respect for the presidency as an institution, warned against pursuing records from the President based on political or partisan ambitions, and cautioned lower courts as they weighed any further challenges to the subpoenas to keep demands for papers in check and even to show considerable deference to the needs of the presidential office.
Roberts chose to assign both of the key opinions to himself, no doubt in an effort to enhance their stature of these opinions as the voice of the Court. There also was some evidence that the Chief Justice had worked diligently to get as many votes among his colleagues as he could for both opinions. Each case was decided by a 7-to-2 vote, with both results supported by President Trump’s two nominees to the Court, Justices Neil M. Gorsuch and Brett M. Kavanaugh (although those two Justices would have imposed a somewhat higher burden on the New York prosecutor to justify that subpoena; they joined in full and without comment the Chief Justice’s opinion in the congressional subpoena case).
Also joining the Chief Justice were the Court’s four moderate-to-liberal Justices – Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. The two most conservative Justices, Clarence Thomas and Samuel A. Alito, Jr., each wrote dissenting opinions in the two cases.
Past history, early and modern, were the foundations on which the Court majority built the decision to allow a state grand jury, for the first time ever, to formally subpoena personal records from a President. The opinion relied both on a demand for papers from President Thomas Jefferson in 1807, and on Watergate prosecutors’ subpoena for White House audiotapes from President Nixon in 1974. The Court found that it simply made no difference that, this time, it was a state prosecutor who had come after presidential papers.
The decision in the congressional subpoena had about it the sense of some regret, as the Chief Justice noted that, until this fight between President Trump and Congress, those two branches always before had worked out their disputes over demanded information without pulling the Supreme Court into the fray.
But the truly significant part of that decision was that the Roberts opinion rejected the President’s claim that a congressional demand for his personal records would have to meet the same standard of need that the Watergate prosecutors had had to satisfy in the Nixon criminal prosecution. The Nixon case, the Court said, involved a demand for official White House records (the tapes) that were protected by the concept of “executive privilege.” There was no claim of that privilege by President Trump, because what was involved were personal not official papers. Roberts wrote that the Court would not transplant the tough Nixon standard into the non-privileged context.
Although much of the Chief Justice’s opinion contained indications that the Court was imposing a fairly heavy burden on congressional committees to justify subpoenas aimed at a President, the probability is that the Capitol Hill panels would be able to meet that burden because they would be in possession of the legislative goals and aims that they were seeking to serve by demanding information, and could now move to bolster their argument for disclosure to them. President Trump, if he chooses to continue to challenge the committees’ demands, would have one thing on his side, the Court indicated; that would be his information about how his White House duties are carried out, and how much they might be impeded by a subpoena demand.
That case will now return to lower courts, where the President and the committees will renew their legal jousting. It seems doubtful that the process would be completed before the November 3 election.
The congressional subpoena case did not involve demands for information from the President for use in the impeachment case against President Trump. That arose after the documents disputes that led to today’s ruling.
In announcing the two rulings today, the Supreme Court did not finish its task of judging document disputes between President Trump and Congress. Still awaiting action by the Court is a House committee’s demands to see all of the background materials that a federal grand jury, working with Special Prosecutor Robert Mueller, had gathered while investigating Russian interference in the 2016 election. On July 2, the Court agreed to rule on that case, but not until its next term, which starts in October. The case probably will not come up, even for a hearing, until after the election. Its fate after that is unknown at this point.
The Court, later today, began its summer recess. It is scheduled to begin its new term on October 5, but it is unclear at this point whether it will be able to resume the use of its courthouse, for in-person hearings and deliberations, because of the virus pandemic. It has been conducting its business remotely for the past four months. The cases decided this week were among the ten cases the Court heard by a remote proceeding in May. The Court has not announced yet how it plans to conduct hearings in the next term.