Downside to Vance Presidential Subpoena Ruling; Potential National Open Season on Future Presidents
Supreme Court's Presidential Subpoena Ruling
WASHINGTON, D.C. (July 9, 2020) - While many may cheer today's U.S. Supreme Court decision in Trump v. Vance that state prosecutors may subpoena a president's private and business financial records, there is a downside for all future presidents, suggests public interest law professor John Banzhaf, who played a role in the appointment of special prosecutors who brought down then-president Richard Nixon.
Coho Capital 2Q20 Commentary: Podcasts, The New Talk Radio
Coho Capital commentary for the second quarter ended June 30, 2020. Q2 2020 hedge fund letters, conferences and more Dear Partners, Coho Capital returned 46.6% during the first half of the year compared to a loss of 3.1% in the S&P 500. Many of our holdings, such as Netflix, Amazon, and Spotify, were perceived beneficiaries Read More
In holding that the New York County District Attorney's Office could subpoena President Donald Trump's private records, and that presidents enjoy no more protection ["heightened standard"] than anyone else, the Court seemingly has declared open season on any president's private and business financial records for prosecutors in over 3,000 counties in the U.S., and potentially thousands more state and city prosecutors.
Indeed, in rejecting the plea for a heightened standard to protect him from the harassment which presidents, unlike most private citizens, potentially face, the Court noted that "Burr teaches that, with regard to private records, a President stands in 'nearly the same
situation with any other individual.' . . . A President may avail himself of the same protections available to every other citizen, including the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth."
While many of such subpoenas may well be legitimate and serve a valid public purpose, it is certainly conceivable, if not readily foreseeable, that some grand jury subpoenas may be issued by prosecutors with an agenda; e.g., to bring down or just harass a president with whom they strongly disagree, obtain publicity and enhance the reputations, etc.
Since it is well known how easy it is for prosecutors to manipulate a grand jury - Tom Wolfe in The Bonfire of the Vanities said "a grand jury would indict a ham sandwich, if that's what you wanted," - prosecutors, including those from counties where most citizens are strongly opposed to a sitting president, should have no problem having subpoenas issued, even on flimsy or totally fabricated grounds, to harass and embarrass a siting president.
Presidential Subpoenas Can Be Issued By Any Grand Jury
It is also ironic that presidential subpoenas can be issued by any grand jury, a process which occurs in secret and is largely controlled by only one individual, whereas those issued by a congressional committee, issued only after a very public process involving people who would argue effectively on behalf of a president and oppose the issuance, face additional legal hurtles, writes Banzhaf.
The Court does note that state criminal subpoenas which harass could, under certain circumstances, threaten the independence or effectiveness of the Executive, but suggests certain protections.
But, says Banzhaf, the protections for the president cited by the Court may be ineffective, or even illusory in practice, and would probably involve more litigation and embarrassment for him
The Court recognizes that "harassing state criminal subpoenas could, under certain circumstances, threaten the independence or effectiveness of the Executive," but suggests that there are some protections; for example, "federal courts may intervene in state proceedings that are motivated by or conducted in bad faith." But so many federal judges have ruled against this president, arguably at times in bad faith, that this protection might prove to illusory in many situations.
The Court also opines that, "because the Supremacy Clause prohibits state judges and prosecutors from interfering with a President's official duties, any effort to manipulate a President's policy decisions or to retaliate against a President for official acts through issuance of a subpoena would be an unconstitutional attempt to 'influence' a superior sovereign 'exempt' from such obstacles, and federal law allows a President to challenge any such allegedly unconstitutional influence in a federal forum."
The Motives Of A Prosecutor
But determining the motives of a prosecutor - especially whether he is attempting to "manipulate" or "retaliate" - is a complex and difficult factual issue to resolve, especially since the arguments made to the grant jury may not reflect his true motives, and such proceedings are secret and protected to some extent by the law.
Another remedy suggested by the Court - "a President can raise subpoena-specific constitutional challenges in either a state or a federal forum. As noted above, he can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause. And he can argue that compliance with a particular subpoena would impede his constitutional duties." - may likewise not adequately protect the interests of future presidents, suggests Banzhaf.
So while it is obviously in the public interest to determine if a sitting president violated the law, and subpoenas of his private and business financial records may be necessary to determine and then prove any such violations, there may be counterbalancing public interests in protecting future presidents from vindictive or publicity-hungry prosecutors who might seek to take advantage of the open season on presidents this ruling appears to create, suggests Banzhaf.