The Supreme Court took two cautious, balanced steps Thursday to clarify something that was obvious to everyone but President Trump and his lawyers: The president can’t dodge investigations into his conduct, even while in office.
But the rulings were so cautious and so balanced that the justices didn’t resolve the battles Congress and prosecutors are waging with the White House over access to Trump’s tax returns and other financial records. That all but guarantees Trump’s ability to keep his records secret until after the November election, if not longer.
The issues raised transcend Trump, speaking more fundamentally to the questions of who can oversee a president, when and how. In the hyperpartisan environment we live in, Trump will hardly be the last president whose personal papers are targeted by lawmakers and prosecutors of the opposite party. A strong majority of the justices offered some important guidance for how to resolve those fights, even if they can’t possibly avert them.
The two cases revolved around efforts by Manhattan Dist. Atty. Cyrus R. Vance Jr. and three congressional committees to obtain overlapping sets of financial records from lenders that did business with Trump or his accounting firm. The president’s lawyers argued that as long as Trump was in office, his personal papers were absolutely immune from subpoenas by state and local prosecutors. They also argued that congressional subpoenas were invalid because the committees hadn’t shown that Trump’s private papers were critically needed to serve a legitimate legislative purpose.
Both of these issues were novel ones for the court, and had the justices accepted Trump’s reasoning, they could have pushed Trump and future presidents well beyond the reach of the law and the legislature. Similarly, there was a real risk that placing too few restrictions on subpoenas would embolden prosecutors and lawmakers to engage in even more frivolous, partisan attacks than they already do (as hard as that might be to imagine in Congress’ case).
The justices steered clear of both traps. In the Vance case, they held that state and local investigations into a sitting president can continue even though he or she cannot be prosecuted while in office. That’s a win for justice; as Chief Justice John G. Roberts Jr. observed for the majority, the passage of time could make it harder to obtain leads and indict third parties, and even deprive grand juries of evidence that could protect the innocent. And as for Congress, the justices set guidelines that aim to protect presidents from partisan fishing expeditions while still giving lawmakers the ability to obtain information that’s not available elsewhere and that serves a valid legislative purpose.
Trump will now fight the subpoenas in lower courts, following the rules the justices laid out. That means his records won’t emerge anytime soon, if ever. But all the parties involved have a better idea now what the limits are, as well as the reassurance that no president is completely out of reach.
