Vance vanquished the idea that a president is above the law

On July 9, 2020, in Trump v. Vance -- a case about subpoenaing then-President Donald J. Trump's financial records -- the U.S. Supreme Court said, in essence, that the president is not above the law. While the case was decided six months ago, the basic principle of the case is especially trenchant after the Jan. 6 assault on the U.S. Capitol by a murderous mob whom Trump and confreres like Rudolph Giuliani had urged to "show strength" with "trial by combat." Trump may possibly be held liable for this, and any financial misdoings, civilly or criminally, regardless of being in the (ex-)presidential pantheon. If this were not so, we might not have decency or rule of law; Vance helps protect those two American treasures.

And Vance is an exciting case. Initially, in 2019, Congress subpoenaed Mazars USA, LLP, Trump's accounting firm, for years of his financial records. (This essay will not cover the related Trump v. Mazars Supreme Court case.) Then, during a criminal investigation into the infamous Trump-"Stormy Daniels" scandal, Manhattan District Attorney Cyrus R. Vance, Jr. subpoenaed Mazars on behalf of a grand jury for Trump's records including tax returns, with a subpoena very similar to Congress'.

Trump sued, in his personal capacity, Vance and Mazars in the storied federal Southern District of New York to quash enforcement of the subpoena, at least during his term in office, claiming total immunity from criminal process because he was president. The district court held he was not entitled to injunctive relief, and the 2nd U.S. Circuit Court of Appeals affirmed.

Chief Justice John Roberts' Vance opinion, joined by the four liberal justices, affirmed and remanded to the district court to hear any additional defenses from Trump. Roberts evoked Chief Justice John Marshall's opinion in U.S. v. Burr (1807), which noted of the British exemption for the monarch from having to testify under subpoena, that a king can "do no wrong"; but in America, the president, being "of the people," is subject to the law. Roberts countered Trump's assertion that a criminal subpoena would be too distracting to his presidential duties, noting that even Richard Nixon had to deal with subpoenas, and that a criminal subpoena might be even less burdensome than the civil-suit matters with which Bill Clinton had to deal.

As for Trump's worries about stigma from a subpoena, Roberts observed that grand-jury secrecy rules would reduce that stigma. And regarding Trump's fear that state district attorneys and courts might be swayed by local prejudices or ambitions, the chief justice said that federal courts can, if necessary, police any irruptions of harassing or excessive state ardor in prosecution.

Too, a heightened-need standard for a state criminal subpoena to a sitting president regarding his personal papers (as opposed to government documents) is unnecessary, Roberts asserted, especially since the public interest in fair law enforcement supports access to evidence: evidence which could disappear or decay over time if not immediately available. Moreover, a president can always challenge subpoenas by using overbreadth or bad faith defenses; and respect for the president's office and duties can suffuse the proceedings and prevent abuse.

In sum: Even considering Article II and the supremacy clause of the Constitution, a sitting president is not immune to state criminal subpoenas, just as he is not immune to federal criminal subpoenas.

Justice Brett Kavanaugh's concurrence (joined by Justice Neil Gorsuch), recommended the U.S. v. Nixon standard of "demonstrated, specific need" to subpoena the president. Justice Clarence Thomas dissented, emphasizing the president's need not to be distracted by subpoenas, and recommending vacating and remanding for judgment by the aforementioned criterion, re enforcement of the subpoena in Vance. Finally, Justice Samuel Alito also dissented, offering sarcastic scenarios of state prosecutors dragging the president into embarrassing situations (if in prison, would his aides be in a cell close by?), and recommending a heightened standard where prosecutors must explain, e.g., why the subpoena couldn't wait until Trump was no longer president.

Imagine a parallel universe where Trump had won Vance: What if he, or a later president, sexually assaulted a girl in a hotel at a campaign stop -- and was immune to criminal process of the state where it happened? Immune until his ugly term as president was over -- perhaps with no way to gather incriminating evidence, at least quickly (civil suits can be slow), because ... above the law. This would not be the democratic America of "We the People" any more, and each president would be a "deep state" unto himself: untouchable, dangerous, and as vile as he wanted to be, for four to eight years.

Thus, America profits from Trump losing Vance. Indeed, part of the excitement of Vance is that Vance makes it harder for the president to do wrongly "exciting" things like assaulting or killing people.

The "remanded" procedural postlude to Vance has a little less excitement, although is still worth reporting: E.g., Trump claimed overbreadth and bad faith of the Mazars subpoena, lost that battle, and had various of his stay requests denied in district and circuit court. On Oct. 13, 2020, Trump went back to the high court (Application 20A63) for a stay of the SDNY order pending disposition of his petition for writ of certiorari (or the Supreme Court summarily reversing the judgment below -- he wishes). But Trump is still waiting, even after his presidency. Maybe the court was in no rush to indulge him.

The more interesting "postlude" is the general efforts of Vance or others to investigate Trump for various alleged misdeeds. New York Attorney General Letitia James is looking into whether Trump unfairly inflated or deflated the value of various assets to get loans or tax advantages, and even the Trump family compound in Westchester County is now being investigated by Vance. Trump is a "gift that keeps on giving," in terms of legal news.

But what is the relevance of Vance itself at present? Slightly less vis-à-vis Trump himself, as he's no longer president (at least until Jan. 20, 2025 at earliest...). Trump himself didn't feel bound to respect his office after the humbling lessons of Vance, as, sadly, all the dead of the Capitol massacre found out: RIP. But all future presidents, hopefully, will feel so bound to respect their office.

And out of office, Trump may of course be more deeply subject than before to criminal or civil investigation, federal or state, and even incarceration.

But after the carnage, metaphorical and real, of the last year: The recent inauguration of a new president, as a peaceful, lawful transfer of power, should inspire Americans regardless of political party. We may similarly be inspired that Vance vanquished the idea that a president is somehow above criminal process; and, hopefully, Vance will help inaugurate a long-needed new era of respect for law, from the top of the society down. 