TRUMP et al. v. MAZARS USA, LLP, et al.

Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit

No. 19-715. Argued May 12, 2020--Decided July 9, 2020 1

In April 2019, three committees of the U. S. House of Representatives issued four subpoenas seeking information about the finances of President Donald J. Trump, his children, and affiliated businesses. The House Committee on Financial Services issued a subpoena to Deutsche Bank seeking any document related to account activity, due diligence, foreign transactions, business statements, debt schedules, statements of net worth, tax returns, and suspicious activity identified by Deutsche Bank. It issued a second subpoena to Capital One for similar information. The Permanent Select Committee on Intelligence issued a subpoena to Deutsche Bank that mirrored the subpoena issued by the Financial Services Committee. And the House Committee on Oversight and Reform issued a subpoena to the President’s personal accounting firm, Mazars USA, LLP, demanding information related to the President and several affiliated businesses. Although each of the committees sought overlapping sets of financial documents, each supplied different justifications for the requests, explaining that the information would help guide legislative reform in areas ranging from money laundering and terrorism to foreign involvement in U. S. elections. Petitioners—the President in his personal capacity, along with his children and affiliated businesses—contested the subpoena issued by the Oversight Committee in the District Court for the District of Columbia (Mazars, No. 19–715) and the subpoenas issued by the Financial Services and Intelligence Committees in the Southern District of New York (Deutsche Bank, No. 19–760). In both cases, petitioners contended that the subpoenas lacked a legitimate legislative purpose and violated the separation of powers. The President did not, however, argue that any of the requested records were protected by executive privilege.

   In Mazars, the District Court granted judgment for the House and the D. C. Circuit affirmed, finding that the subpoena issued by the Oversight Committee served a valid legislative purpose because the requested information was relevant to reforming financial disclosure requirements for Presidents and presidential candidates. In Deutsche Bank, the District Court denied a preliminary injunction and the Second Circuit affirmed in substantial part, holding that the Intelligence Committee properly issued its subpoena to Deutsche Bank as part of an investigation into alleged foreign influence in the U. S. political process, which could inform legislation to strengthen national security and combat foreign meddling. The court also concluded that the subpoenas issued by the Financial Services Committee to Deutsche Bank and Capital One were adequately related to potential legislation on money laundering, terrorist financing, and the global movement of illicit funds through the real estate market.

Held: The courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information. Pp. 7–20.

  (a) Historically, disputes over congressional demands for presidential documents have been resolved by the political branches through negotiation and compromise without involving this Court. The Court recognizes that this dispute is the first of its kind to reach the Court; that such disputes can raise important issues concerning relations between the branches; that similar disputes recur on a regular basis, including in the context of deeply partisan controversy; and that Congress and the Executive have nonetheless managed for over two centuries to resolve these disputes among themselves without Supreme Court guidance. Such longstanding practice “ ‘is a consideration of great weight’ ” in cases concerning “the allocation of power between [the] two elected branches of Government,” and it imposes on the Court a duty of care to ensure that it does not needlessly disturb “the compromises and working arrangements” reached by those branches. NLRB v. Noel Canning, 573 U. S. 513, 524–526 (quoting The Pocket Veto Case, 279 U. S. 655, 689). Pp. 7–11.

  (b) Each House of Congress has the power “to secure needed information” in order to legislate. McGrain v. Daugherty, 273 U. S. 135, 161. This power is “indispensable” because, without information, Congress would be unable to legislate wisely or effectively. Watkins v. United States, 354 U. S. 178, 215. Because this power is “justified solely as an adjunct to the legislative process,” it is subject to several limitations. Id., at 197. Most importantly, a congressional subpoena is valid only if it is “related to, and in furtherance of, a legitimate task of the Congress.” Id., at 187. The subpoena must serve a “valid legislative purpose.” Quinn v. United States, 349 U. S. 155, 161. Furthermore, Congress may not issue a subpoena for the purpose of “law enforcement,” because that power is assigned to the Executive and the Judiciary. Ibid. Finally, recipients of congressional subpoenas retain their constitutional rights and various privileges throughout the course of an investigation. Pp. 11–12.

  (c) The President contends, as does the Solicitor General on behalf of the United States, that congressional subpoenas for the President’s information should be evaluated under the standards set forth in United States v. Nixon, 418 U. S. 683, and Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F. 2d 725, which would require the House to show that the requested information satisfies a “demonstrated, specific need,” 418 U. S., at 713, and is “demonstrably critical” to a legislative purpose, 498 F. 2d, at 731. Nixon and Senate Select Committee, however, involved subpoenas for communications between the President and his close advisers, over which the President asserted executive privilege. Because executive privilege safeguards the public interest in candid, confidential deliberations within the Executive Branch, information subject to the privilege deserves “the greatest protection consistent with the fair administration of justice.” 418 U. S., at 715. That protection should not be transplanted root and branch to cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations. The standards proposed by the President and the Solicitor General—if applied outside the context of privileged information—would risk seriously impeding Congress in carrying out its responsibilities, giving short shrift to its important interests in conducting inquiries to obtain information needed to legislate effectively. Pp. 12–14.

  (d) The approach proposed by the House, which relies on precedents that did not involve the President’s papers, fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President’s information. The House’s approach would leave essentially no limits on the congressional power to subpoena the President’s personal records. A limitless subpoena power could transform the established practice of the political branches and allow Congress to aggrandize itself at the President’s expense. These separation of powers concerns are unmistakably implicated by the subpoenas here, which represent not a run-of-the-mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved. The interbranch conflict does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity. Nor are separation of powers concerns less palpable because the subpoenas were issued to third parties. Pp. 14–18.

  (e) Neither side identifies an approach that adequately accounts for these weighty separation of powers concerns. A balanced approach is necessary, one that takes a “considerable impression” from “the practice of the government,” McCulloch v. Maryland, 4 Wheat. 316, 401, and “resist[s]” the “pressure inherent within each of the separate Branches to exceed the outer limits of its power,” INS v. Chadha, 462 U. S. 919, 951. 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,” Watkins, 354 U. S., at 187, courts must take adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the unique position of the President.

  Several special considerations inform this analysis. First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. “ ‘[O]ccasion[s] for constitutional confrontation between the two branches’ should be avoided whenever possible.” Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 389–390 (quoting Nixon, 418 U. S., at 692). Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. The specificity of the subpoena’s request “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.” Cheney, 542 U. S., at 387. Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial, the better. That is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency. Fourth, courts should assess the burdens imposed on the President by a subpoena, particularly because they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage. Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list. Pp. 18–20.

No. 19–715, 940 F. 3d 710; No. 19–760, 943 F. 3d 627, vacated and remanded.

 Roberts, C. J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., and Alito, J., filed dissenting opinions.

Notes
1 Together with 19–760, Trump et al. v. Deutsche Bank AG et al., on certiorari to the United States Court of Appeals for the Second Circuit.


TOMMY SHARP, interim WARDEN, PETITIONER v. PATRICK DWAYNE MURPHY

On Writ Of Certiorari To The United States Court Of Appeals For The Tenth Circuit

[July 9, 2020]

Per Curiam.  The judgment of the United States Court of Appeals for the Tenth Circuit is affirmed for the reasons stated in McGirt v. Oklahoma, ante, p. ___.

It is so ordered.

 Justice Gorsuch took no part in the consideration or decision of this case.

 Justice Thomas and Justice Alito dissent.


McGIRT v. OKLAHOMA

Certiorari To The Court Of Criminal Appeals Of Oklahoma

No. 18-9526. Argued May 11, 2020--Decided July 9, 2020

The Major Crimes Act (MCA) provides that, within “the Indian country,” “[a]ny Indian who commits” certain enumerated offenses “shall be subject to the same law and penalties as all other persons committing any of [those] offenses, within the exclusive jurisdiction of the United States.” 18 U. S. C. §1153(a). “Indian country” includes “all land within the limits of any Indian reservation under the jurisdiction of the United States Government.” §1151. Petitioner Jimcy McGirt was convicted by an Oklahoma state court of three serious sexual offenses. He unsuccessfully argued in state postconviction proceedings that the State lacked jurisdiction to prosecute him because he is an enrolled member of the Seminole Nation and his crimes took place on the Creek Reservation. He seeks a new trial, which, he contends, must take place in federal court.

Held: For MCA purposes, land reserved for the Creek Nation since the 19th century remains “Indian country.” Pp. 3–42.

  (a) Congress established a reservation for the Creek Nation. An 1833 Treaty fixed borders for a “permanent home to the whole Creek Nation of Indians,” 7 Stat. 418, and promised that the United States would “grant a patent, in fee simple, to the Creek nation of Indians for the [assigned] land” to continue “so long as they shall exist as a nation, and continue to occupy the country hereby assigned to them,” id., at 419. The patent formally issued in 1852.

  Though the early treaties did not refer to the Creek lands as a “reservation,” similar language in treaties from the same era has been held sufficient to create a reservation, see, e.g., Menominee Tribe v. United States, 391 U. S. 404, 405, and later Acts of Congress—referring to the “Creek reservation”—leave no room for doubt, see, e.g., 17 Stat. 626. In addition, an 1856 Treaty promised that “no portion” of Creek lands “would ever be embraced or included within, or annexed to, any Territory or State,” 11 Stat. 700, and that the Creeks would have the “unrestricted right of self-government,” with “full jurisdiction” over enrolled Tribe members and their property, id., at 704. Pp. 3–6.

  (b) Congress has since broken more than a few promises to the Tribe. Nevertheless, the Creek Reservation persists today. Pp. 6–28.

   (1) Once a federal reservation is established, only Congress can diminish or disestablish it. Doing so requires a clear expression of congressional intent. Pp. 6–8.

   (2) Oklahoma claims that Congress ended the Creek Reservation during the so-called “allotment era”—a period when Congress sought to pressure many tribes to abandon their communal lifestyles and parcel their lands into smaller lots owned by individual tribal members. Missing from the allotment-era agreement with the Creek, see 31 Stat. 862–864, however, is any statute evincing anything like the “present and total surrender of all tribal interests” in the affected lands. And this Court has already rejected the argument that allotments automatically ended reservations. Pp. 8–13.

   (3) Oklahoma points to other ways Congress intruded on the Creeks’ promised right to self-governance during the allotment era, including abolishing the Creeks’ tribal courts, 30 Stat. 504–505, and requiring Presidential approval for certain tribal ordinances, 31 Stat. 872. But these laws fall short of eliminating all tribal interest in the contested lands. Pp. 13–17.

   (4) Oklahoma ultimately claims that historical practice and demographics are enough by themselves to prove disestablishment. This Court has consulted contemporaneous usages, customs, and practices to the extent they shed light on the meaning of ambiguous statutory terms, but Oklahoma points to no ambiguous language in any of the relevant statutes that could plausibly be read as an act of cession. Such extratextual considerations are of “ ‘limited interpretive value,’ ” Nebraska v. Parker, 577 U. S. 481, ___, and the “least compelling” form of evidence, South Dakota v. Yankton Sioux Tribe, 522 U. S. 329, 356. In the end, Oklahoma resorts to the State’s long historical practice of prosecuting Indians in state court for serious crimes on the contested lands, various statements made during the allotment era, and the speedy and persistent movement of white settlers into the area. But these supply little help with the law’s meaning and much potential for mischief. Pp. 17–28.

 (c) In the alternative, Oklahoma contends that Congress never established a reservation but instead created a “dependent Indian community.” To hold that the Creek never had a reservation would require willful blindness to the statutory language and a belief that the land patent the Creek received somehow made their tribal sovereignty easier to divest. Congress established a reservation, not a dependent Indian community, for the Creek Nation. Pp. 28–31.

  (d) Even assuming that the Creek land is a reservation, Oklahoma argues that the MCA has never applied in eastern Oklahoma. It claims that the Oklahoma Enabling Act, which transferred all non-federal cases pending in the territorial courts to Oklahoma’s state courts, made the State’s courts the successors to the federal territorial courts’ sweeping authority to try Indians for crimes committed on reservations. That argument, however, rests on state prosecutorial practices that defy the MCA, rather than on the law’s plain terms. Pp. 32–36.

  (e) Finally, Oklahoma warns of the potential consequences that will follow a ruling against it, such as unsettling an untold number of convictions and frustrating the State’s ability to prosecute crimes in the future. This Court is aware of the potential for cost and conflict around jurisdictional boundaries. But Oklahoma and its tribes have proven time and again that they can work successfully together as partners, and Congress remains free to supplement its statutory directions about the lands in question at any time. Pp. 36–42.

Reversed.

 Gorsuch, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Roberts, C. J., filed a dissenting opinion, in which Alito and Kavanaugh, JJ., joined, and in which Thomas, J., joined, except as to footnote 9. Thomas, J., filed a dissenting opinion.


TRUMP v. VANCE, DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK, et al.

Certiorari To The United States Court Of Appeals For The Second Circuit

No. 19-635. Argued May 12, 2020--Decided July 9, 2020

In 2019, the New York County District Attorney’s Office—acting on behalf of a grand jury—served a subpoena duces tecum on Mazars USA, LLP, the personal accounting firm of President Donald J. Trump, for financial records relating to the President and his businesses. The President, acting in his personal capacity, sued the district attorney and Mazars in Federal District Court to enjoin enforcement of the subpoena, arguing that a sitting President enjoys absolute immunity from state criminal process under Article II and the Supremacy Clause. The District Court dismissed the case under the abstention doctrine of Younger v. Harris, 401 U. S. 37, and, in the alternative, held that the President was not entitled to injunctive relief. The Second Circuit rejected the District Court’s dismissal under Younger but agreed with the court’s denial of injunctive relief, concluding that presidential immunity did not bar enforcement of the subpoena and rejecting the argument of the United States as amicus curiae that a state grand jury subpoena seeking the President’s documents must satisfy a heightened showing of need.

Held: Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President. Pp. 3–22.

  (a) In 1807, John Marshall, presiding as Circuit Justice for Virginia over the treason trial of Aaron Burr, granted Burr’s motion for a subpoena duces tecum directed at President Jefferson. In rejecting the prosecution’s argument that a President was not subject to such a subpoena, Marshall held that a President does not “stand exempt” from the Sixth Amendment’s guarantee that the accused have compulsory process for obtaining witnesses for their defense. United States v. Burr, 25 F. Cas. 30, 33–34. The sole argument for an exemption was that a President’s “duties as chief magistrate demand his whole time for national objects.” Ibid. But, in Marshall’s assessment, those duties were “not unremitting,” ibid., and any conflict could be addressed by the court upon return of the subpoena. Marshall also concluded that the Sixth Amendment’s guarantee extended to the production of papers. “[T]he propriety of introducing any papers,” he explained, would “depend on the character of the paper, not the character of the person who holds it,” and would have “due consideration” upon the return of the subpoena. Id., at 34, 37. Jefferson agreed to furnish whatever justice required, subject to the prerogative to decide whether particular executive communications should be withheld.

  In the two centuries since Burr, successive Presidents from Monroe to Clinton have accepted Marshall’s ruling that the Chief Executive is subject to subpoena and have uniformly agreed to testify when called in criminal proceedings.

  In 1974, the question whether to compel the disclosure of official communications over the President’s objection came to a head when the Watergate Special Prosecutor secured a subpoena duces tecum directing President Nixon to produce, among other things, tape recordings of Oval Office meetings. This Court rejected Nixon’s claim of an absolute privilege of confidentiality for all presidential communications. Recognizing that “compulsory process” was imperative for both the prosecution and the defense, the Court held that the President’s “generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” United States v. Nixon, 418 U. S. 683, 713. President Nixon dutifully released the tapes. Pp. 3–10.

  (b) This history all involved federal criminal proceedings. Here, the President claims that the Supremacy Clause gives a sitting President absolute immunity from state criminal subpoenas because compliance with such subpoenas would categorically impair the performance of his Article II functions. The Solicitor General, arguing on behalf of the United States, claims that a state grand jury subpoena for a sitting President’s personal records must, at the very least, meet a heightened standard of need. Pp. 10–22.

   (1) The President’s unique duties as head of the Executive Branch come with protections that safeguard his ability to perform his vital functions. The Constitution also guarantees “the entire independence of the General Government from any control by the respective States.” Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232 U. S. 516, 521. Marshall’s ruling in Burr, entrenched by 200 years of practice and this Court’s decision in Nixon, confirms that federal criminal subpoenas do not “rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions.” Clinton v. Jones, 520 U. S. 681, 702–703. But the President claims that state criminal subpoenas necessarily pose a unique threat of impairment and thus require absolute immunity. His categorical argument focuses on three burdens: diversion, stigma, and harassment. Pp. 10–17.

  (i) The President contends that complying with state criminal subpoenas would necessarily distract the Chief Executive from his duties. He grounds that concern on Nixon v. Fitzgerald, which recognized a President’s “absolute immunity from damages liability predicated on his official acts.” 457 U. S. 731, 749. But, contrary to the President’s suggestion, that case did not hold that distraction was sufficient to confer absolute immunity. Indeed, the Court expressly rejected immunity based on distraction alone 15 years later in Clinton v. Jones, when President Clinton sought absolute immunity from civil liability for private acts. As the Court explained, Fitzgerald’s “dominant concern” was not mere distraction but the distortion of the Executive’s “decisionmaking process.” 520 U. S., at 694, n. 19. The prospect that a President may become “preoccupied by pending litigation” did not ordinarily implicate constitutional concerns. Id., at 705, n. 40. Two centuries of experience likewise confirm that a properly tailored criminal subpoena will not normally hamper the performance of a President’s constitutional duties.

  The President claims this case is different. He believes that he is under investigation and argues that the toll will necessarily be heavier in that circumstance. But the President is not seeking immunity from the diversion occasioned by the prospect of future criminal liability. He concedes that he may be investigated while in office. His objection is instead limited to the additional distraction caused by the subpoena itself. That argument, however, runs up against the 200 years of precedent establishing that Presidents, and their official communications, are subject to judicial process, see Burr, 25 F. Cas., at 34, even when the President is under investigation, see Nixon, 418 U. S., at 706. Pp. 12–14.

  (ii) The President next claims that the stigma of being subpoenaed will undermine his leadership at home and abroad. But even if a tarnished reputation were a cognizable impairment, there is nothing inherently stigmatizing about a President performing “the citizen’s normal duty of . . . furnishing information relevant” to a criminal investigation. Branzburg v. Hayes, 408 U. S. 665, 691. Nor can the risk of association with persons or activities under criminal investigation absolve a President of such an important public duty. The consequences for a President’s public standing will likely increase if he is the one under investigation, but the President concedes that such investigations are permitted under Article II and the Supremacy Clause. And the receipt of a subpoena would not seem to categorically magnify the harm to the President’s reputation. Additionally, in the grand jury context longstanding secrecy rules aim to prevent the very stigma the President anticipates. Pp. 14–15.

  (iii) Finally, the President argues that subjecting Presidents to state criminal subpoenas will make them “easily identifiable target[s]” for harassment. Fitzgerald, 457 U. S., at 753. The Court rejected a nearly identical argument in Clinton, concluding that the risk posed by harassing civil litigation was not “serious” because federal courts have the tools to deter and dismiss vexatious lawsuits. 520 U. S., at 708. Harassing state criminal subpoenas could, under certain circumstances, threaten the independence or effectiveness of the Executive. But here again the law already seeks to protect against such abuse. First, grand juries are prohibited from engaging in “arbitrary fishing expeditions” or initiating investigations “out of malice or an intent to harass,” United States v. R. Enterprises, Inc., 498 U. S. 292, 299, and federal courts may intervene in state proceedings that are motivated by or conducted in bad faith. Second, 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, see McCulloch v. Maryland, 4 Wheat. 316, 417. And federal law allows a President to challenge any such allegedly unconstitutional influence in a federal forum. Pp. 15–17.

   (2) A state grand jury subpoena seeking a President’s private papers need not satisfy a heightened need standard, for three reasons. First, although a President cannot be treated as an “ordinary individual” when executive communications are sought, Burr teaches that, with regard to private papers, a President stands in “nearly the same situation with any other individual.” 25 F. Cas., at 191–192. Second, there has been no showing here that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions. Finally, absent a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence.

  Rejecting a heightened need standard does not leave Presidents without recourse. 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. When the President invokes such protections, “[t]he high respect that is owed to the office of the Chief Executive . . . should inform the conduct of the entire proceeding, including the timing and scope of discovery.” Clinton, 520 U. S., at 707. In addition, 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. Pp. 17–21.

941 F. 3d 631, affirmed and remanded.

 Roberts, C. J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Kavanaugh, J., filed an opinion concurring in the judgment, in which Gorsuch, J., joined. Thomas, J., and Alito, J., filed dissenting opinions.