In September 2016, then-candidate Donald J. Trump assured the American public that he would release his tax returns as soon as the IRS finished a “routine audit” of his taxes, a claim the White House Press Secretary repeated in July 2020.1 Meanwhile, the President litigated two cases before the Supreme Court last Term seeking to prevent various parties from accessing his tax returns.2 In one of the cases, President Trump challenged a grand jury subpoena served by the New York District Attorney on his accountants,3 arguing that the President had absolute immunity from state criminal process.4 Last Term, in Trump v. Vance,5 the Supreme Court held that the President does not enjoy absolute immunity from state criminal subpoenas, nor is he entitled to a heightened standard of need.6 Though the Court’s conclusion was soundly grounded in precedent, its appeal to originalism to give additional authority to its holding codified an oversimplified version of the history of the Framers into separation of powers doctrine.
In 2019, Cyrus R. Vance, Jr., the District Attorney for the County of New York, began investigating possible fraud by President Trump and his company.7 After serving a grand jury subpoena on the Trump Organization, to which the company responded “at least in part,” Vance served a grand jury subpoena on the accounting firm Mazars on August 29, 2019, seeking various records, including President Trump’s tax returns since January 2011.8 President Trump sued and filed a motion for a temporary restraining order and a preliminary injunction to enjoin enforcement of the subpoena.9 Vance opposed the motion and moved to dismiss the complaint, while Mazars took no position on the case.10
In the District Court for the Southern District of New York, Judge Marrero declined to “endorse such a categorical and limitless assertion of presidential immunity from judicial process.”11 The court first determined that it should abstain from intervening in state court proceedings under Younger v. Harris.12 To eliminate the need for a remand if the Second Circuit were to disagree, the district court went on to deny preliminary injunctive relief on the merits, determining that the President had failed to demonstrate irreparable harm13 or a likelihood of success on the merits.14 The court rejected the President’s argument that he should be immune from all criminal proceedings, finding that not all such proceedings would interfere with his official duties.15 Lastly, the Supreme Court’s guidance in Clinton v. Jones16 and a balancing test of the competing interests “persuade[d] [the court] to reject the President’s request for injunctive relief” as President Trump’s interest in confidentiality was “far outweighed” by the interests of the state in enforcing its laws.17
The Second Circuit vacated the district court’s dismissal under Younger but affirmed its denial of the President’s motion for a preliminary injunction and remanded.18 Writing for a unanimous panel, Chief Judge Katzmann19 deemed Younger abstention unjustified,20 but found that the President was not entitled to injunctive relief because he was unlikely to succeed on the merits.21 Though the court recognized that the President “occupies a unique position in the constitutional scheme,”22 it pointed out that the Mazars subpoena did not implicate executive privilege or the President’s official actions,23 nor did it compel “the President himself to do anything.”24 Therefore, relying on “the long-settled proposition that ‘the President is subject to judicial process in appropriate circumstances,’” the court rejected President Trump’s absolute immunity argument.25 That the subpoena came from a state prosecutor did not affect the court’s analysis because the subpoena at issue “d[id] not involve ‘direct control by a state court over the President.’”26 The court also rejected the President’s arguments that the subpoena would cause stigma against him27 and that it was coercive.28 Lastly, the court rejected the United States’ arguments that prosecutors must make a “heightened showing of need for the documents sought.”29 The heightened need standard was drawn from executive privilege cases, and the court found no reason to expand it to the President’s personal papers.30
The Supreme Court affirmed.31 Writing for the Court, Chief Justice Roberts32 opened by retelling the story of Aaron Burr’s treason trial, in which Chief Justice Marshall upheld a subpoena issued to President Jefferson.33 The Court then discussed the two-hundred-year history of Presidents obeying subpoenas, ending with a retelling of United States v. Nixon.34 Having granted certiorari to determine “whether Article II and the Supremacy Clause categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President,”35 the Court answered both questions in the negative.36
The Court first rejected the President’s absolute immunity claim. Because federal criminal subpoenas to the President have been understood to be constitutional in the Court’s prior cases,37 President Trump argued that state criminal subpoenas bring three unique burdens: diversion, stigma, and harassment.38 The Court rejected all three. First, the Court rejected the argument that state criminal subpoenas would distract the President from his duties.39 President Trump invoked Nixon v. Fitzgerald,40 which recognized a President’s absolute immunity from civil liability based on his official acts in part because such liability could “distract a President from his public duties.”41 However, the Court pointed out that Fitzgerald did not recognize absolute immunity based on distraction alone.42 Citing “200 years of precedent,”43 the Court found that “a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties.”44 Second, the Court rejected President Trump’s argument that the stigma associated with a subpoena would “undermine his leadership.”45 Having previously “denied absolute immunity claims by Presidents in cases involving allegations of serious misconduct” on two occasions, the Court determined that grand jury secrecy rules act to prevent the sort of stigma President Trump feared.46 Third, the Court rejected the argument that allowing criminal subpoenas would make a President an easy target for harassment by politically motivated local prosecutors.47 Clinton had rejected a similar argument,48 and the Court determined that legal safeguards already existed to prevent the sort of abuse the President feared.49 Therefore, the Court concluded that the President does not enjoy absolute immunity from state criminal subpoenas.50
The Court further determined that a state grand jury subpoena need not satisfy a heightened need standard. A heightened need standard would extend to the President’s personal papers a protection intended for official documents.51 Such a protection would contradict Marshall’s decision in United States v. Burr,52 which specifically held that as to papers “not of an official nature,” the President “must stand . . . in nearly the same situation with any other individual.”53 Further, such a heightened standard would not be necessary for the President to fulfill his Article II functions.54 Finally, the Court determined that “the public interest in fair and effective law enforcement cut[] in favor of comprehensive access to evidence.”55 The Court’s decision did not leave the President without protections against subpoenas: he can challenge subpoenas as any citizen could,56 and he can raise subpoena-specific constitutional challenges.57
Justice Kavanaugh concurred in the judgment.58 He agreed that the President is not absolutely immune from state grand jury subpoenas and that the case should be remanded to the district court.59 However, he wrote separately to argue that Nixon’s “demonstrated, specific need”60 standard, which he described as a “tried-and-true test that accommodates both the interests of the criminal process and the Article II interests of the [p]residency,” should apply.61 Justice Kavanaugh concluded that lower courts faced with similar cases “will almost invariably have to begin by delving into” states’ reasons and motivations for seeking the President’s information.62
Justice Thomas dissented. He would have vacated the order, to allow the President to argue that he was entitled to relief against the enforcement of the subpoena.63 First, Justice Thomas agreed with the majority that the President did not enjoy absolute immunity from state criminal subpoenas.64 However, outlining the President’s significant and unique role65 and arguing for judicial restraint,66 Justice Thomas concluded that the President is entitled to injunctive and declaratory relief if he can show that he is “unable to comply because of his official duties.”67 Unlike the heightened need standard, Justice Thomas’s proposed standard would “place[] the burden on the President but [would] also require[] courts to take pains to respect the demands on the President’s time.”68
Justice Alito also dissented, contending that a subpoena to the President must meet a heightened need standard.69 Though he agreed with the majority that the President did not have absolute immunity from subpoenas, he would have held that a heightened need standard is required to “take[] into account the need to prevent interference with a President’s discharge of the responsibilities of the office.”70 While Justice Thomas’s standard would place the burden on the President,71 Justice Alito’s would place the burden on the prosecution to show a special need for the subpoenaed records.72 Because “a criminal prosecution holds far greater potential for distracting a President . . . than does the average civil suit,” Justice Alito argued that “[t]he Court’s decision threaten[ed] to impair the functioning of the [p]residency” and that “the Constitution demands greater protection” for the President.73
Although the Court had previously discussed the trial of Aaron Burr,74 the Vance opinion elevated the dispute to a much sharper focus. The Court’s extended discussion of Burr made an appeal to originalism to support the result it reached. But, in doing so, the Court adopted an overly simplistic story of Burr and canonized it into the Court’s separation of powers doctrine. The Burr trial amply illustrated the Founders’ disagreements as to many separation of powers issues. Recalling it undermines rather than reveals the singular original intent sought by an originalist approach to modern separation of powers.
The Court invoked the Burr trial in a nod to originalism. The Court’s holding was dictated by Nixon and Clinton75 and its own separation of powers concerns. 76 Yet Chief Justice Roberts took great pains to discuss the implications of Burr at length.77 As the Court acknowledged, Chief Justice Marshall was sitting as Circuit Justice in the Burr trial78 — Burr was not a Supreme Court decision and has limited precedential value in the Court.79 Accordingly, the Court’s use of Burr in Clinton and Nixon was ancillary to its central holdings.80 In Vance, however, the Court held up Burr as the foundation for the historical practice of Presidents complying with subpoenas.81 As it was not cited as precedent, nor used merely as background, the Court’s extended discussion of the Burr trial is best understood as an attempt to shore up its holding by reference to original intent. Some originalists discount certain decisions of the Marshall Court as inconsistent with the original understanding, but most would generally treat the decisions of Chief Justice Marshall as binding on most constitutional questions.82 One originalist scholar has suggested that an approach in which history is woven throughout an otherwise precedent-driven opinion — garnering support from some, but not all originalist Justices — was characteristic of the Court’s last Term.83 Although Vance is not an originalist opinion, Chief Justice Roberts’s extended discussion of the Burr trial and the “great jurist”84 who presided over it appears intended to draw on a notion of an original understanding that would support his holding.
Yet the Court’s appeal to originalism is unhelpful in resolving modern separation of powers issues. Dean Erwin Chemerinsky argues that “originalism is particularly poorly suited to separation of powers cases” because, among other things, “the Framers’ intent is unclear or non-existent” as to “many essential government powers”85 and “there is fairly strong evidence that the Framers meant for the allocation of powers to be adjusted among the branches over time.”86 In other words, in the separation of powers context, an originalist methodology may itself counsel against originalism.87 Furthermore, with regard to most separation of powers issues, including presidential immunity, there was no consensus amongst the Founders. James Madison suggested that the Constitutional Convention consider the privileges of the Executive, but the issue was not discussed, which at least one delegate interpreted to mean that the President had no special privilege.88 Nor was there any consensus outside of the Convention or in the First Congress.89 In short, “[t]he members of the Founding generation simply disagreed on this issue.”90 Writing for the Court in Clinton, Justice Stevens acknowledged the limited value of historical evidence in this area and explicitly declined to rely on it.91 The Court in Vance could have similarly recognized the conflicting historical evidence instead of basing its holding on one reading of it.
Vance is particularly illustrative of these concerns, as the Court omitted discussion of the significant disagreements between the Framers involved in the Burr trial. One commentator has noted that Chief Justice Roberts “recounted a sanitized version of this seminal dispute,”92 as evidenced by three key omissions. First, the Court did not make it clear that Jefferson agreed to produce the requested documents before he was aware of the subpoena.93 Therefore, Jefferson was not complying with the subpoena, and one cannot infer that he recognized it as a legitimate use of judicial power.94 Second, Jefferson wrote in his letter to the prosecutor that he agreed “voluntarily to furnish on all occasions . . . whatever the purposes of justice may require,”95 but the Court omitted the word “voluntarily” from its opinion,96 changing the tone of the phrase significantly and presenting Jefferson as much more amicable to the exercise of judicial power than he really was. Finally, though the Court acknowledged Jefferson’s assertion that “[h]is ‘personal attendance’ . . . was out of the question,”97 it did not mention that the subpoena required Jefferson’s presence and that, according to at least some interpreters, Jefferson “actively flouted the subpoena.”98 In short, the originalist meaning of Burr is more complicated and nuanced than the Court’s opinion in Vance may have suggested,99 partly because Jefferson and Marshall, two Founders, disagreed sharply on separation of powers issues.100 In retelling the story of Aaron Burr’s trial, Chief Justice Roberts adhered to a more simplified understanding, presenting a story that supported the Court’s result but was importantly incomplete.
The Vance Court’s appeal to originalism entrenches a simplified history in precedent. The Supreme Court’s treatment of history, even if incomplete or erroneous, creates a “common law of history”101 or “historical factual precedent” that may be treated as authoritative by the lower courts.102 Whether “[r]ight or wrong,” the Court’s retelling “is the only historical account . . . that matters now because it is the one that binds lower courts.”103 When the Court’s historical account is incorrect, as it has been “on numerous occasions,”104 the Court risks “inscrib[ing] disfiguring views of [history] into precedent”105 in a way that is especially difficult to correct. Even if later courts realize the error, they must face the difficult decision between following the erroneous precedent or announcing the mistake.106 As Judge Sutton writes, “both horns of the dilemma are sharp indeed.”107 As a result, the Court may take decades to correct its errors and, even then, might not fully correct the historical record.108 In Vance, the Court purported to “reaffirm” a principle established by Burr,109 but the history of the Burr trial “is not so simple and does not stand as a rock-solid precedent for either side” of the presidential immunity debate.110 Ultimately, although the Burr trial has long loomed large in the Court’s mythos,111 Chief Justice Roberts’s simplified retelling in Vance will likely become the authoritative account of the dispute.112
Vance was always going to mention Burr. It is a foundational case and was quoted in both Nixon and Clinton.113 However, Burr is not a binding precedent, and while history is and should be relevant to constitutional interpretation,114 the Court’s recounting of Aaron Burr’s treason trial simplified the dispute between Jefferson and Marshall and created the false impression of a singular original understanding of the President’s amenability to subpoena. This incomplete version of history is now codified as Supreme Court precedent, and may well reverberate through American jurisprudence for generations to come.