Subscribe to Here’s the Deal, our politics
newsletter for analysis you won’t find anywhere else.
Thank you. Please check your inbox to confirm.
The U.S. Supreme Court has ruled the Manhattan district attorney can obtain President Trump’s tax returns. The justices sent a question on House subpoenas for presidential financial records back to a lower court but rejected arguments that the president is immune from investigation. John Yang reports, and Judy Woodruff talks to former Justice Department officials Mary McCord and Jesse Panuccio.
There are two major stories tonight.
The U.S. Supreme Court rules on subpoenas for President Trump's financial records, and underscores that no one is above the law. And the nation struggles to stop COVID-19, as surging infections show no one is beyond its reach.
First, today's Supreme Court decisions.
John Yang begins our coverage.
The Supreme Court flatly rejected President Trump's claim that he is completely immune from a state criminal investigation as long as he is in office.
Chief Justice John Roberts wrote the decision, saying: "No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding."
The 7-2 majority included Justices Neil Gorsuch and Brett Kavanaugh, the court's two to Trump appointees.
Roberts also said: "A president may avail himself of the same protections available to every other citizen to try to block a subpoena."
So, the case was returned to the lower courts to give President Trump an opportunity to make those arguments, meaning the question may not be finally settled for sometime.
The dissenters, Justices Clarence Thomas and Samuel Alito, said, a sitting president deserves special consideration. Alito wrote: "It is unrealistic to think that the prospect of possible criminal prosecution will not interfere with the performance of the duties of the office."
Today's ruling was a milestone, the first time justices said whether a president must comply with a state criminal investigation. It was a stinging rebuke for a president who has a sweeping view of his powers.
President Donald Trump:
This is a political witch-hunt, the likes of which nobody's ever seen before. It's a pure witch-hunt. It's a hoax.
Marcia Coyle is chief Washington correspondent for "The National Law Journal."
Is there a message to a president who says he has — his Article 2 powers allow him to do whatever he wants?
John, I think that opinion is a clear message to a sitting president that your Article 2 powers are not unlimited, very clear message. This was, you know, across ideological opinion, a very strong precedent for the future.
A Manhattan grand jury convened by district attorney Cyrus Vance Jr. subpoenaed records, including the president's zealously guarded tax returns, dating back to 2011.
Andrea Bernstein co-hosts WNYC Radio and ProPublica's podcast "Trump, Inc."
The president consistently files different sets of information on his tax documents and on other documents, for example, bank loan documents, when you want your value to look high. The numbers don't necessarily match tax documents when you want the numbers to look low. So you pay less taxes.
So, that is a pattern that the district attorney could possibly turn up as a byproduct of this investigation.
In a separate case, the same 7-2 lineup rejected the president's arguments about broader subpoenas issued by several House committees, but it also turned away the congressional claim to virtually unlimited subpoena power.
Again, Roberts wrote the majority opinion: "Far from accounting for separation of powers concerns, the House's approach aggravates them."
The chief justice was very disappointed. He said, traditionally, the House and the — or the executive branch and the legislative branch work these things out together.
But, apparently, he said, that process is broken down. Robert said, what we need here is a balanced approach. And it has to take into consideration that these are two independent branches of our government.
This matter, too, was sent back to the lower courts with instructions to determine whether the House subpoenas serve a legislative purpose and are not too broad.
In his dissent, Thomas said: "Congress has no power to issue a legislative subpoena for private non-official documents, whether they belong to the president or not."
House Speaker Nancy Pelosi vowed to keep seeking the material.
Speaker Nacy Pelosi, D-Calif.:
We will continue to press our case in lower courts.
Former Trump attorney Michael Cohen plays a key role in both subpoenas. His claim that he was the middleman for hush money payments to two women who say they had sexual relationships with Mr. Trump, which the president denies, is part of the New York grand jury investigation.
He turned over records. We have seen them. He turned them over when he testified before the House in 2019, the check signed by Donald Trump for $35,000, part of the hush money payment. So we know that those documents exist.
And his congressional testimony triggered the House request.
It was my experience that Mr. Trump inflated his total assets.
House committees want the records to look for possible financial wrongdoing in property deals and whether overseas loans make the president vulnerable to foreign influence.
But the need for more court proceedings and rules about grand jury secrecy means it's unlikely that any of these documents would be made public until after the election.
For the "PBS NewsHour," I'm John Yang.
Now that the Supreme Court has spoken, what consequences will these rulings have on the powers of the president and those who seek to investigate him?
We get two perspectives tonight. Mary McCord is a former prosecutor who became the Justice Department's top national security official during the Obama administration. She's now at Georgetown University. And Jesse Panuccio was the department's number three official, the acting associate attorney general in the Trump administration, just until last year. He's now in private practice.
And we welcome you both to the program.
I want to begin with the justices' ruling on the Manhattan district attorney general case.
And, Mary McCord, to you first.
What do you make of the justices' reasoning here? And how much of a setback do you think this is for the president?
Well, this was an important decision, because all nine justices, including the dissenters, agree that there was no absolute immunity that the president could assert that would prevent him from having to respond to a criminal subpoena.
And the justices were very, again, unanimous in this. And although some differed in their rationale, it's important, because, historically, for 200 years, as the chief justice pointed out, no person has been above the law, and that includes the president.
So, this was a real victory for the New York attorney Cy Vance. It was a real rebuke to the overreach, the assertion of absolute immunity, which even the president had gone farther than the solicitor general had gone in that case.
So, Jesse Panuccio, was it a miscalculation for the president's attorneys to make the argument they did, to try to argue that the president was immune?
Well, Judy, good evening. Thanks for having me.
I don't think it was a miscalculation. If you look at what the Supreme Court did today, it gave the president a loss on absolute immunity. But, politically, he probably got a win.
These cases will continue to be litigated. They will be litigated well past the election. So these subpoenas, if they are ever enforced, will be enforced after that time.
And then, legally, in both the New York case and the congressional case, the Supreme Court gave the president a lot to work with in terms of making arguments going forward.
Concentrating on the New York case, the Supreme Court was very clear in recognizing that local prosecutors can be motivated improperly by politics or political retaliation or bad faith. And the court made very clear that the federal courts must be open to the president to protect him from that kind of local prosecutorial misconduct.
Well, the president doesn't seem to think it's a win. As you heard, he's calling it a political witch-hunt and a hoax.
But, Mary McCord, back to you on what recourse the president now has when it comes to his ability to stop what the Manhattan DA is trying to go after. He can rest now, as I understand it, on an argument, I'm just an ordinary citizen, but I still think what you're doing has no foundation, can he not?
So, in this case, the president had, again, put all of his eggs in one basket when he brought this case to try to stop these subpoenas. He had argued he was absolutely immune.
So, he had never made other arguments that an ordinary person might make, such as saying, this subpoena is too burdensome, this subpoena is brought in bad faith or for harassment, this subpoena — those types of arguments — this subpoena causes constitutional problems.
So what the Supreme Court says is, we're not vacating the lower opinion, right? We're affirming the lower court opinion, which denied absolute immunity. That was the Second Circuit opinion. But they said that even the Second Circuit had said this case should go back to the district court, in case the president has any other arguments to make, such as burden, such as harassment, such as abuse, that then he could make those, like an ordinary citizen.
The only thing the — so the Supreme Court was essentially just affirming what the Second Circuit had already said, which is no absolute immunity, but you can make other arguments you might want to make, President.
I think it's important, though, to recognize that, even in doing that, the Supreme Court did say, in considering the arguments that would be made, the lower courts should consider the fact that this is the president, right, not necessarily special treatment, but in analyzing the arguments, the person making the arguments, in this case, the president, just like any other person would make arguments unique to him.
In this case, he had made no arguments at all unique to this subpoena by Cy Vance in this case about how it might burden him, how it might have been abusive or harassing, and he's saying the things he's saying, but he will have to make arguments that would convince a court that this is overreach.
And there's nothing about the Supreme Court's decision that suggests that the Supreme Court thought that these subpoenas were overreach or abusive or harassing.
But, Jesse Panuccio, I hear you saying that you think that is what the president's attorneys are now likely to do. Is that right?
Well, I think that's right.
And, respectfully, I don't think it's true that there's nothing in the opinion that speaks to whether the court thought the subpoena by Mr. Vance was overreaching.
At the very outset of the opinion, the Supreme Court calls the investigation opaquely described. It notes, reading between the lines, I think with some disapproval, that the subpoena simply was a word-for-word copy of a congressional subpoena.
And then after it rejects claims of absolute immunity, it goes on very clearly to say that the president is a special office under the Constitution, that separation of powers does matter, and there are special considerations when it comes to a president and local prosecutors, such as the fact that a local prosecutor can be improperly politically motivated.
And I read the opinion as saying the president can begin to probe those motivations. And, most interestingly, this is going back probably to the SDNY. This is the very same court that a few years ago said that the state of New York could take discovery into the motivations of Secretary Wilbur Ross in the census case.
So, if I were the president's lawyers, I think I would say, I want discovery into the motivations of Cy Vance. I want to know what his prosecutors did to come up with this subpoena, whether they had contact with any political actors, whether they are retaliating against me because of decisions I have made in relation to the state of New York in federal policies.
I think that's all open now under the Supreme Court's special opinion.
And we will wait and see what happens in that regard.
But, more broadly speaking, in terms of the powers of the presidency, the office of the presidency going forward, I saw, Mary McCord, some analysis today saying that the fact that the justices were even asked to say what they said today in a way weakens or takes something away from the president's prerogative.
How do you see that argument?
Are you speaking particularly of the second case, the case involving the House subpoenas?
I think both cases.
So, you know, historically, you really saw this in the Supreme Court's decision in the Mazars and Deutsche Bank case, that, historically, these types of disputes between branches — now, granted, the Cy Vance case is not a dispute between branches — but, historically, disputes between branches have been resolved between the branches.
They haven't gone to the courts very often, and they have never up to the Supreme Court. And so I think what you saw was a level of disappointment, frankly, from the Supreme Court that it really has to be dealing with these things, notwithstanding that, of course, it accepted cert in these and granted certiorari, so it could review them, because they were important issues that were being pressed by the president and by his attorneys, in the face of rulings against him below.
It's also important, I think, to recognize that, in the second case, the Mazars case, even though that ends up in a vacater of the opinion and a remand, there really wasn't a clear winner in the case, because, essentially, what the Supreme Court said is…
It's gone back.
… is both parties' positions were too extreme, and both parties, what they have asked for would — runs into separation of powers concerns, because you have got two political co-equal branches in conflict with each other.
The president wanted to go too far that would undercut Congress' important Article 1 functions. And it thought that Congress went too far as well.
And just quickly, Jesse Panuccio, what about — do you see a cost to the office of the presidency in the fact that the court had to deal with this issue?
Well, (AUDIO GAP) there can be a cost, because you ultimately get a ruling, and that can constrain what you can do as president going forward.
But I think, in both of these opinions, the court was at pains to leave many questions open for another day. In the congressional opinion, the court notes toward the end that one case every 200 years is not enough to flesh out all of the considerations that may matter to federal courts and to Congress and the president going forward.
So, I think while, ultimately, the claims of absolute immunity were rejected today, the court left open plenty of avenues for this president and future presidents to make arguments about presidential prerogative, and, frankly, to future Congresses.
And I think the court was cognizant of the fact that you don't know what exact shape future controversies will take place between Congress and the president. You only know that, since the founding of the country, they have existed and they will continue to exist.
And so the court left a lot of room for, I think, future maneuverability.
For sure, two important rulings.
Jesse Panuccio, Mary McCord, thank you both for joining us to explore all of this. Thank you.
Good night. Stay well. Thank you.
Watch the Full Episode
Support Provided By: