Court victories too late for voters
We need bigger reforms and faster wins
President Donald Trump has tried for more than three years to dismantle our system of checks and balances and sweep aside any source of accountability for his abuses, be it the courts, Congress or the states. Thursday’s Supreme Court rulings made clear that checks and balances still apply and that accountability is coming. The decisions create a path for the House of Representatives and a New York grand jury to obtain the president’s financial information. This is an important vindication of the principle that no person is above the law.
At the same time, the practical impact of the court’s decisions will be to further delay the House and the grand jury from actually securing records, further delaying the reforms and real accountability that our country so desperately needs. Both Congress and the Manhattan grand jury seem well positioned eventually to prevail — but the court’s rulings won’t save us from the president’s abuses right now.
As the director of a government ethics watchdog, I have advocated for thorough investigations of the president’s numerous misdeeds, including his obstruction of justice in connection with the Russia investigation, his apparent campaign finance crimes and failure to disclose his debts to his attorney Michael Cohen, his attempts to bully and bribe Ukraine into investigating Joe Biden, and the unending corruption and conflicts of interest that stem from his decision to keep his businesses while president. Thursday’s rulings lay the groundwork for investigations like these to move forward for this president and future presidents.
Just as the court unanimously held that Presidents Richard Nixon and Bill Clinton were subject to judicial process during their time in office, it reaffirmed in Thursday’s Vance decision that state criminal investigations can proceed against a sitting president. Like their predecessors, five justices concluded that “the president is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need,” and two other justices agreed.
Mixed results for democracy
Although Vance is a victory for accountability, it is neither immediate nor complete. In sending the case back to a lower court, the justices made clear that Trump could raise further challenges to the subpoena and argue — as Nixon and Clinton did — that enforcement of a subpoena would impede his performance of constitutional duties.
Also critical to remember is that the decision about the New York investigation was always going to have a limited impact for reasons that have nothing to do with Thursday’s opinions. State grand juries and prosecutors cannot police many of the types of criminal violations of which Trump has been credibly accused over the past four years.
Obstruction of federal proceedings, federal campaign finance violations and making a false or fraudulent statement on a federal disclosure are federal crimes. As long as the Justice Department maintains its policy that a sitting president cannot be indicted or is led by an attorney general uninterested in policing presidential misconduct, future would-be authoritarians will, like Trump, face few roadblocks to stunningly egregious misbehavior.
The court’s decision in Mazars — the case about the House subpoena — similarly provides a mixed result for our democracy. The justices may have struck the right balance for the separation of powers by insisting that courts perform a careful analysis in assessing “whether a subpoena directed at the president’s personal information is ‘related to, and in furtherance of, a legitimate task of the Congress.’ ”
Congress has a strong argument that it needs to see Trump’s financial records to craft and consider workable solutions that protect Americans against presidential conflicts of interest, disclosure rules to shine a light on corruption, and divestment rules that prevent both. And the burden placed on the president in this case is small. The subpoenas are directed at private companies, not the president personally.
Courts must move faster
Inspired by this decision, the House must not only press forward in pursuing the subpoenas at issue in the case, it also should redouble efforts to perform oversight, demand documents and issue subpoenas, knowing that if its investigations are justified and carefully supported, Congress will get many of the records it needs.
Like Vance, though, the Mazars decision only gives us limited protection right now from the concerted assault on our constitutional system of checks and balances. The president and his administration have followed through on his promise in April 2019 to stonewall subpoenas and document requests from the House. For instance, they have refused to turn over to Congress records relating to the Mueller investigation, President Trump’s withholding of aid to Ukraine and related abuses of power, and political interference with the 2020 census.
The slow pace of judicial action to vindicate legitimate congressional subpoenas, which these decisions won’t help, serves the interests of a president like Trump who consistently seeks to expand his power and get away with ever more misconduct. That is why one bipartisan reform Americans must demand is a faster process for resolving legal disputes between Congress and the executive branch. In the post-Trump era, we need our courts to say what the law is — and do so quickly.
Ultimately, the scale of reform and accountability our country desperately needs is much bigger than a victory in a Supreme Court case or two, even consequential ones like these.