Trump v. Vance

591 U.S. ___ (2020)

Case Year: 2020

Case Ruling: 7-2, Affirmed and remanded

Opinion Justice: Roberts

 

In the summer of 2018, the New York County District Attorney’s Office opened an investigation into what it described as “business transactions involving multiple individuals whose conduct may have violated state law.” A year later, the 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. Mazars, concluding that the dispute was between the President and the district attorney, took no position on the legal issues raised by the President.

The District Court dismissed the case and, in the alternative, held that the President was not entitled to injunctive relief. The U.S. Court of Appeals for the Second Circuit rejected the District Court’s dismissal 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. The President then took his case to the Supreme Court.

 

CHIEF JUSTICE ROBERTS delivered the opinion of the Court.

In our judicial system, “the public has a right to every man’s evidence.” Since the earliest days of the Republic, “every man” has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts. This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable. We granted certiorari to decide 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…

In the summer of 1807, all eyes were on Richmond, Virginia. Aaron Burr, the former Vice President, was on trial for treason. Fallen from political grace after his fatal duel

with Alexander Hamilton, and with a murder charge pending in New Jersey, Burr followed the path of many down- and-out Americans of his day—he headed West in search of new opportunity. But Burr was a man with outsized ambitions. Together with General James Wilkinson, the Governor of the Louisiana Territory, he hatched a plan to establish a new territory in Mexico, then controlled by Spain. Both men anticipated that war between the United States and Spain was imminent, and when it broke out they intended to invade Spanish territory at the head of a private army.

But while Burr was rallying allies to his cause, tensions with Spain eased and rumors began to swirl that Burr was conspiring to detach States by the Allegheny Mountains from the Union. Wary of being exposed as the principal co- conspirator, Wilkinson took steps to ensure that any blame would fall on Burr. He sent a series of letters to President Jefferson accusing Burr of plotting to attack New Orleans and revolutionize the Louisiana Territory.

Jefferson, who despised his former running mate Burr for trying to steal the 1800 presidential election from him, was predisposed to credit Wilkinson’s version of events. The  President sent a special message to Congress identifying Burr as the “prime mover” in a plot “against the peace and safety of the Union.” According to Jefferson, Burr contemplated either the “sever- ance of the Union” or an attack on Spanish territory. Jefferson acknowledged that his sources contained a “mixture of rumors, conjectures, and suspicions” but, citing Wilkinson’s letters, he assured Congress that Burr’s guilt was “beyond question.”

The trial that followed was “the greatest spectacle in the short history of the republic,” complete with a Founder-studded cast… Chief Justice John Marshall, who had recently squared off with the Jefferson administration in Marbury v. Madison (1803), presided as Circuit Justice for Virginia. Meanwhile Jefferson, intent on conviction, orchestrated the prosecution from afar, dedicating Cabinet meetings to the case, peppering the prosecutors with directions, and spending nearly $100,000 from the Treasury on the five-month proceedings.

In the lead-up to trial, Burr, taking aim at his accusers, moved for a subpoena duces tecum directed at Jefferson. The draft subpoena required the President to produce an October 21, 1806 letter from Wilkinson and accompanying documents, which Jefferson had referenced in his message to Congress. The prosecution opposed the request, arguing that a President could not be subjected to such a subpoena and that the letter might contain state secrets. Following four days of argument, Marshall announced his ruling to a packed chamber.

The President, Marshall declared, does not “stand exempt from the general provisions of the constitution” or, in particular, the Sixth Amendment’s guarantee that those accused have compulsory process for obtaining witnesses for their defense. At common law the “single reservation” to the duty to testify in response to a subpoena was “the case of the king,” whose “dignity” was seen as “in- compatible” with appearing “under the process of the court.” But, as Marshall explained, a king is born to power and can “do no wrong.” The President, by contrast, is “of the people” and subject to the law. Ac- cording to Marshall, the sole argument for exempting the President from testimonial obligations was that his “duties as chief magistrate demand his whole time for national objects.” But, in Marshall’s assessment, those demands were “not unremitting.” And should the President’s duties preclude his attendance at a particular time and place, a court could work that out upon return of the subpoena.

Marshall also rejected the prosecution’s argument that the President was immune from a subpoena duces tecum because executive papers might contain state secrets. “A  subpoena duces tecum,” he said, “may issue to any person to whom an ordinary subpoena may issue.” As he ex- plained, no “fair construction” of the Constitution supported the conclusion that the right “to compel the attendance of witnesses[] does not extend” to requiring those witnesses to “bring[ ] with them such papers as may be material in the defence.” And, as a matter of basic fairness, permitting such information to be withheld would “tarnish the reputation of the court.” As for “the propriety of introducing any papers,” that would “depend on the character of the paper, not on the character of the person who holds it.” Marshall acknowledged that the papers sought by Burr could contain information “the disclosure of which would endanger the public safety,” but stated that, again, such concerns would have “due consideration” upon the return of the subpoena.

While the arguments unfolded, Jefferson, who had received word of the motion, wrote to the prosecutor indicating that he would—subject to the prerogative to decide which executive communications should be withheld—“furnish on all occasions, whatever the purposes of justice may require.”  His “personal attendance,” however, was out of the question, for it “would leave the nation without” the “sole branch which the constitution requires to be always in function.”

Before Burr received the subpoenaed documents, Marshall rejected the prosecution’s core legal theory for treason and Burr was accordingly acquitted. Jefferson, however, was not done. Committed to salvaging a conviction, he directed the prosecutors to proceed with a misdemeanor (yes, misdemeanor) charge for inciting war against Spain. Burr then renewed his request for Wilkinson’s October 21 letter, which he later received a copy of, and subpoenaed a second letter, dated November 12, 1806, which the prosecutor claimed was privileged. Acknowledging that the President may withhold information to protect public safety, Marshall instructed that Jefferson should “state the particular reasons” for withholding the letter.

The court, paying “all proper respect” to those reasons, would then decide whether to compel disclosure. But that decision was averted when the misdemeanor trial was cut short after it became clear that the prosecution lacked the evidence to convict.

In the two centuries since the Burr trial, successive Presidents have accepted Marshall’s ruling that the Chief Executive is subject to subpoena. In 1818, President Monroe received a subpoena to testify in a court-martial against one of his appointees. His Attorney General, William Wirt—who had served as a prosecutor during Burr’s trial—advised Monroe that, per Marshall’s ruling, a subpoena to testify may “be properly awarded to the President.” 

Monroe offered to sit for a deposition and ultimately submitted answers to written interrogatories.

Following Monroe’s lead, his successors have uniformly agreed to testify when called in criminal proceedings, provided they could do so at a time and place of their choosing. In 1875, President Grant submitted to a three-hour deposition in the criminal prosecution of a political appointee em- broiled in a network of tax-evading whiskey distillers. A century later,  President Ford’s attempted assassin subpoenaed him to testify in her defense.

Ford obliged—from a safe distance—in the first videotaped deposition of a President…. President Clinton testified three times, twice via deposition pursuant to subpoenas in federal criminal trials of associates implicated during the Whitewater investigation, and once by video for a grand jury investigating possible per- jury.

The bookend to Marshall’s ruling came in 1974 when the question he never had to decide—whether to compel the dis- closure of official communications over the objection of the President—came to a head. That spring, the Special Prosecutor appointed to investigate the break-in of the Democratic National Committee Headquarters at the Watergate complex filed an indictment charging seven defendants associated with President Nixon and naming Nixon as an un- indicted co-conspirator. As the case moved toward trial, the Special Prosecutor secured a subpoena duces tecum directing Nixon to produce, among other things, tape recordings of Oval Office meetings. Nixon moved to quash the subpoena, claiming that the Constitution provides an absolute privilege of confidentiality to all presidential communica- tions. This Court rejected that argument in United States v. Nixon (1974), a decision we later described as “unequivocally and emphatically endors[ing] Marshall’s” holding that Presidents are subject to subpoena. Clinton v. Jones  (1997).

The Nixon Court readily acknowledged the importance of preserving the confidentiality of communications “between high Government officials and those who advise and assist them.”…

But, like Marshall two centuries prior, the Court recognized the countervailing interests at stake. Invoking the common law maxim that “the public has a right to every man’s evidence,” the Court observed that the public interest in fair and accurate judicial proceedings is at its height in the criminal setting, where our common commitment to jus- tice demands that “guilt shall not escape” nor “innocence suffer.” Because these dual aims would be “defeated if  judgments” were “founded on a partial or speculative presentation of the facts,” the Nixon Court recognized that it was “imperative” that “compulsory process be available for the production of evidence needed either by the prosecution or the defense.” The Court thus concluded that the President’s “generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Two weeks later, President Nixon dutifully released the tapes.

The history surveyed above all involved federal criminal proceedings. Here we are confronted for the first time with a subpoena issued to the President by a local grand jury operating under the supervision of a state court.

In the President’s view, that distinction makes all the difference. He argues that the Supremacy Clause gives a sit- ting President absolute immunity from state criminal subpoenas because compliance with those subpoenas would categorically impair a President’s performance of his Article II functions. The Solicitor General, arguing on behalf of the United States, agrees with much of the President’s reasoning but does not commit to his bottom line. Instead, the Solicitor General urges us to resolve this case by holding that a state grand jury subpoena for a sitting President’s personal records must, at the very least, “satisfy a heightened standard of need,” which the Solicitor General contends was not met here.

We begin with the question of absolute immunity. No one doubts that Article II guarantees the independence of the Executive Branch. As the head of that branch, the President “occupies a unique position in the constitutional scheme.” Nixon v. Fitzgerald (1982). His duties, which range from faithfully executing the laws to commanding the Armed Forces, are of unrivaled gravity and breadth. Quite appropriately, those duties come with protections that safeguard the President’s ability to perform his vital functions. See, e.g., Nixon v. Fitzgerald (concluding that the President enjoys “absolute immunity from damages liability predicated on his official acts”); United States v. Nixon  (recognizing that presidential communications are presumptively privileged).

In addition, the Constitution guarantees “the entire independence of the General Government from any control by the respective States.” As we have often repeated, “States have no power . . . to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by Congress.” McCulloch v. Maryland (1819). It follows that States also lack the power to impede the President’s execution of those laws.

Marshall’s ruling in Burr, entrenched by 200 years of practice and our decision in Nixon, confirms that federal criminal subpoenas do not “rise to the level of constitutionally forbidden impairment of the Executive’s ability to per- form its constitutionally mandated functions.” But the President, joined in part by the Solicitor General, argues that state criminal subpoenas pose a unique threat of impairment and thus demand greater protection. To be clear, the President does not contend here that this subpoena, in particular, is impermissibly burdensome. Instead he makes a categorical argument about the burdens generally associated with state criminal subpoenas, focusing on three: diversion, stigma, and harassment. We address each in turn.

The President’s primary contention, which the Solicitor General supports, is that complying with state criminal subpoenas would necessarily divert the Chief Executive from his duties. He grounds that concern in Nixon v. Fitzgerald, which recognized a President’s “absolute immunity from damages liability predicated on his official acts.”

In explaining the basis for that immunity, this Court observed that the prospect of such liability could “distract a President from his public duties, to the detri- ment of not only the President and his office but also the Nation that the Presidency was designed to serve.” The President contends that the diversion occasioned by a state criminal subpoena imposes an equally intolerable burden on a President’s ability to perform his Article II functions.

But Fitzgerald did not hold that distraction was sufficient to confer absolute immunity…. Indeed, we expressly rejected immunity  based on distraction alone 15 years later in Clinton v. Jones. There, President Clinton argued that the risk of being “distracted by the need to participate in litigation” entitled a sitting President to absolute immunity from civil liability, not just for official acts, as in Fitzgerald, but for private conduct as well. We disagreed with that rationale, explaining that the “dominant concern” in Fitzgerald was not mere distraction but the distortion of the Executive’s “decisionmaking process” with respect to official acts that would stem from “worry as to the possibility of damages.” The Court recognized that Presidents constantly face myriad demands on their attention, “some private, some political, and some as a result of official duty.” But, the Court concluded, “[w]hile such distractions may be vexing to those subjected to them, they do not ordinarily implicate consti- tutional . . . concerns.”

The same is true of criminal subpoenas. Just as a “properly managed” civil suit is generally “unlikely to occupy any substantial amount of ” a President’s time or attention. [T]wo centuries of experience confirm that a properly tailored criminal subpoena will not normally hamper the performance of the President’s constitutional duties. If anything, we expect that in the mine run of cases, where a President is subpoenaed during a proceeding targeting someone else, as Jefferson was, the burden on a President will ordinarily be lighter than the burden of defending against a civil suit….

The President next claims that the stigma of being subpoenaed will undermine his leadership at home and abroad. Notably, the Solicitor General does not endorse this argument, perhaps because we have twice denied absolute immunity claims by Presidents in cases involving allegations of serious misconduct. See Clinton; Nixon. 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. Nor can we accept that the risk of association with persons or activities under criminal investigation can absolve a President of such an important public duty. Prior Presidents have weathered these associations in federal cases, and there is no reason to think any attendant notoriety is necessarily greater in state court proceedings…

Finally, the President and the Solicitor General  warn that subjecting Presidents to state criminal subpoenas will make them “easily identifiable target[s]” for harassment. But we rejected a nearly identical argument in Clinton, where then-President Clinton argued that permitting civil liability for unofficial acts would “generate a large volume of politically motivated harassing and frivolous litigation.” The President and the Solicitor General nevertheless argue that state criminal subpoenas pose a heightened risk and could undermine the President’s ability to “deal fearlessly and impartially” with the States. Fitzgerald. They caution that, while federal prosecutors are accountable to and removable by the President, the 2,300 district attorneys in this country are responsive to local constituencies, local interests, and local prejudices, and might “use criminal process to register their dissatisfaction with” the President. What is more, we are told, the state courts supervising local grand juries may not exhibit the same respect that federal courts show to the President as a coordinate branch of Government.

We recognize, as does the district attorney, that harassing subpoenas could, under certain circumstances, threaten the independence or effectiveness of the Executive. Even so, in Clinton we found that the risk of harassment was not “serious” because federal courts have the tools to deter and, where necessary, dismiss vexatious civil suits. And, while we cannot ignore the possibility that state prosecutors may have political motivations, here again the law already seeks to protect against the predicted abuse.

First, grand juries are prohibited from engaging in “arbitrary fishing expeditions” and initiating investigations “out of malice or an intent to harass.” …

Second… our holding does not allow States to “run roughshod over the functioning of [the Executive B]ranch.”  The Supremacy Clause prohibits state judges and prosecutors from interfering with a President’s official duties. … We generally “assume[] that state courts and prosecutors will observe constitutional limitations.” Failing that, federal law allows a President to challenge any allegedly unconstitutional influence in a federal forum, as the President has done here.

Given these safeguards and the Court’s precedents, we cannot conclude that absolute immunity is necessary or ap- propriate under Article II or the Supremacy Clause. Our dissenting colleagues agree. JUSTICE THOMAS reaches the same conclusion based on the original understanding of the Constitution reflected in Marshall’s decision in Burr. And JUSTICE ALITO, also persuaded by Burr, “agree[s]” that “not all” state criminal subpoenas for a Pres- ident’s records “should be barred.” On that  point the Court is unanimous.

We next consider whether a state grand jury subpoena seeking a President’s private papers must satisfy a heightened need standard. The Solicitor General would require a threshold showing that the evidence sought is “critical” for “specific charging decisions” and that the subpoena is a “last resort,” meaning the evidence is “not available from any other source” and is needed “now, rather than at the end of the President’s term.” JUSTICE ALITO, largely embracing those criteria, agrees that a state criminal subpoena to a President “should not be allowed unless a heightened standard is met.”

We disagree, for three reasons. First, such a heightened standard would extend protection designed for official documents to the President’s private papers….But this argument does not account for the  relevant passage from Burr: “If there be a paper in the possession of the executive, which is not of an official nature, he must stand, as respects that paper, in nearly the same situation with any other individual.”

Second, neither the Solicitor General nor JUSTICE ALITO established that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions. Beyond the risk of harassment, which we addressed above, the only justification they offer for the heightened standard is protecting Presidents from “unwarranted burdens.” In effect, they argue that even if federal subpoenas to a President are warranted whenever evidence is material, state subpoenas are warranted “only when [the] evidence is essential.” But that double standard has no basis in law. For if the state subpoena is not issued to manipulate, the documents themselves are not protected, and the Executive is not impaired, then nothing in Article II or the Supremacy Clause supports holding state subpoenas to a higher standard than their federal counterparts.

Finally, in the absence of a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence. Requiring a state grand jury to meet a heightened standard of need would hobble the grand jury’s ability to acquire “all information that might possibly bear on its investigation.” And, even assuming the evidence withheld under that standard were preserved until the conclusion of a President’s term, in the interim the State would be deprived of investigative leads that the evidence might yield, allowing memories to fade and documents to disappear. This could frustrate the identification, investigation, and indictment of third parties (for whom applicable statutes of limitations might lapse). More troubling, it could prejudice the innocent by depriving the grand jury of exculpatory evidence.

Rejecting a heightened need standard does not leave Presidents with “no real protection.” To start, a President may avail himself of the same protections available to every other citizen. These include the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth…. Furthermore, although the Constitution does not entitle the Executive to absolute immunity or a heightened standard, he is not “relegate[d]” only to the challenges available to private citizens. A President can raise subpoena-specific constitutional chal- lenges, in either a state or federal forum. As previously noted, he can challenge the subpoena as an attempt to in- fluence the performance of his official duties, in violation of the Supremacy Clause. This avenue protects against local political machinations “interposed as an obstacle to the effective operation of a federal constitutional power.” In addition, the Executive can—as the district attorney concedes—argue that compliance with a particular subpoena would impede his constitutional duties. Incidental to the functions confided in Article II is “the power to perform them, without obstruction or impediment.” As a result, “once the President sets forth and explains a conflict between judicial proceeding and public duties,” or shows that an order or subpoena would “significantly interfere with his efforts to carry out” those duties, “the matter changes.” At that point, a court should use its inherent authority to quash or modify the subpoena, if necessary to ensure that such “interference with the President’s duties would not occur.”

* * *

Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that  principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need. …

The arguments presented here and in the Court of Appeals were limited to absolute immunity and heightened need. The Court of Appeals, however, has directed that the case be returned to the District Court, where the President may raise further arguments as appropriate.

 

We affirm the judgment of the Court of Appeals and re- mand the case for further proceedings consistent with this opinion.

 

It is so ordered.

JUSTICE KAVANAUGH, with whom JUSTICE GORSUCH joins, concurring in the judgment.

The longstanding precedent that has applied to federal criminal subpoenas for official, privileged Executive Branch information is United States v. Nixon  (1974). That landmark case requires that a prosecutor establish a “demonstrated, specific need” for the President’s information.

The Nixon “demonstrated, specific need” standard is a tried-and-true test that accommodates both the interests of the criminal process and the Article II interests of the Presidency. The Nixon standard ensures that a prosecutor’s interest in subpoenaed information is sufficiently important to justify an intrusion on the Article II interests of the Presidency. The Nixon standard also reduces the risk of subjecting a President to unwarranted burdens, because it provides that  a  prosecutor  may  obtain  a  President’s information only in certain defined circumstances.

Although the Court adopted the Nixon standard in a different Article II context—there, involving the confidential- ity of official, privileged information—the majority opinion today recognizes that there are also important Article II (and Supremacy Clause) interests at stake here. A state criminal subpoena to a President raises Article II and Supremacy Clause issues because of the potential for a state prosecutor to use the criminal process and issue subpoenas in a way that interferes with the President’s duties, through harassment or diversion.

Because this case again entails a clash between the interests of the criminal process and the Article II interests of the Presidency, I would apply the longstanding Nixon “demonstrated, specific need” standard to this case. The  majority opinion does not apply the Nixon standard in this distinct Article II context, as I would have done. That said, the majority opinion appropriately takes account of some important concerns that also animate Nixon and the Constitution’s balance of powers. The majority opinion explains that a state prosecutor may not issue a subpoena for a President’s personal information out of bad faith, malice, or an intent to harass a President; as a result of prosecutorial impropriety; to seek information that is not relevant to an investigation; that is overly broad or unduly burdensome; to manipulate, influence, or retaliate against a President’s official acts or policy decisions, ante, at 17, 20; or in a way that would impede, conflict with, or interfere with a President’s official duties…

I agree that the case should be remanded to the District Court for further proceedings, where the President may raise constitutional and legal objections to the state grand jury subpoena as appropriate.

 

JUSTICE THOMAS, dissenting.

 I agree with the majority that the President is not entitled to absolute immunity from issuance of the subpoena. But he may be entitled to relief against its enforcement. I therefore agree with the President that the proper course is to vacate and remand. If the President can show that “his duties as chief magistrate demand his whole time for national objects.”

The majority recognizes that the President can seek relief from enforcement, but it does not vacate and remand for the lower courts to address this question. I would do so and instruct them to apply the standard articulated by Chief Justice Marshall in Burr: If the President is unable to comply because of his official du- ties, then he is entitled to injunctive and declaratory relief…

The Burr standard places the burden on the President but also requires courts to take pains to respect the de- mands on the President’s time. The Constitution vests the President with extensive powers and responsibilities, and courts are poorly situated to conduct a searching review of the President’s assertion that he is unable to comply…

Courts must…recognize their own limitations. When the President asserts that matters of foreign affairs or national defense preclude his compliance with a subpoena, the Judiciary will rarely have a basis for rejecting that assertion. Judges “simply lack the relevant information and expertise to second-guess determinations made by the President based on information properly withheld.”

“[E]ven if the courts could compel the Executive to produce the necessary information” to understand the demands on his time, decisions about that information “are simply not amenable to judicial determination because ‘[t]hey are delicate, complex, and involve large elements of prophecy.’”

JUSTICE ALITO, dissenting.

 A subpoena like the one now before us should not be enforced unless it meets a test that takes into account the need to prevent interference with a President’s discharge of the responsibilities of the office. I agree with the Court that not all such subpoenas should be barred. There may be situations in which there is an urgent and critical need for the subpoenaed information. The situation in the Burr trial, where the documents at issue were sought by a criminal defendant to defend against a charge of treason, is a good example. But in a case like the one at hand, a subpoena should not be allowed unless a heightened standard is met.

Prior cases involving Presidential subpoenas have always applied special, heightened standards.  In the Burr  trial, Chief Justice Marshall was careful to note that “in no case of this kind would a court be required to proceed against the president as against an ordinary individual,” and he held that the subpoena to President Jefferson was permissible only because the prosecutor had shown that the materials sought were “essential to the justice of the [pending criminal] case.”

In United States v. Nixon (1974), where the Watergate Special Prosecutor subpoenaed tape recordings and documents under the control of President Nixon, this Court refused to quash the subpoena because there was a “demonstrated, specific need for [the] evidence in a pending criminal trial.” …

The important point is not that the subpoena in this case should necessarily be governed by the particular tests used in these cases, most of which involved official records that were claimed to be privileged. Rather, the point is that we should not treat this subpoena like an ordinary grand jury subpoena and should not relegate a President to the meager defenses that are available when an ordinary grand jury subpoena is challenged. But that, at bottom, is the effect of the Court’s decision.

The Presidency deserves greater protection. Thus, in a  case like this one, a prosecutor should be required (1) to provide at least a general description of the possible offenses that are under investigation, (2) to outline how the subpoenaed records relate to those offenses, and (3) to explain why it is important that the records be produced and why it is necessary for production to occur while the President is still in office.

In the present case, the district attorney made a brief proffer, but important questions were left hanging. It would not be unduly burdensome to insist on answers before enforcing the subpoena.

One obvious question concerns the scope of the subpoena. The subpoena issued by the grand jury is largely a copy of the subpoenas issued by Committees of the House of Representatives, and it would be quite a coincidence if the records relevant to an investigation of possible violations of New York criminal law just so happened to be almost identical to the records thought by congressional Committees to be useful in considering federal legislation. It is therefore appropriate to ask the district attorney to explain the need for the various items that the subpoena covers.

The district attorney should also explain why it is important that the information in question be obtained from the President’s records rather than another source. And the district attorney should set out why he finds it necessary that the records be produced now as opposed to when the President leaves office. At argument, respondent’s counsel told us that his office’s concern is the expiration of the statute of limitations, but there are potential solutions to that problem. Even if New York law does not automatically suspend the statute of limitations for prosecuting a president until he leaves office, it may be possible to eliminate the problem by waiver. And if the prosecutor’s statute-of-limitations concerns relate to parties other than the President, he should be required to spell that out.

There may be other good reasons why immediate enforcement is important, such as the risk that evidence or important leads will be lost, but if a prosecutor believes that immediate enforcement is needed for such a reason, the prosecutor should be required to provide a reasonably specific explanation why that is so and why alternative means, such as measures to preserve evidence and prevent spoliation, would not suffice.

Unlike this rule, which would not undermine any legitimate state interests, the opinion of the Court provides no real protection for the Presidency. The Court discounts the risk of harassment and assumes that state prosecutors will observe constitutional limitations, and I also assume that the great majority of state prosecutors will carry out their responsibilities responsibly. But there is a very real risk that some will not….

The Court [also] says that a President can “argue that compliance with a particular subpoena would impede his constitutional duties,” but under the Court’s opinions in this case and [Trump v.] Mazars, it is not easy to see how such an argument could prevail. The Court makes clear that any stigma or damage to a President’s reputation does not count and in Mazars, the Court states that “burdens on the President’s time and attention” are generally not of constitutional concern. Elsewhere in its opinion in this case, the Court takes the position that when a President’s non-official records are subpoenaed, his treatment should be little different from that of any other subpoena recipient. The most that the Court holds out is the possibility that there might be some unspecified extraordinary circumstances under which a President might obtain relief…

For all practical purposes, the Court’s decision places a sitting President in the same unenviable position as any other person whose records are subpoenaed by a grand jury. …

The lesson we should take from Marshall’s jurisprudence is the lesson of McCulloch—the importance of preventing a State from undermining the lawful exercise of authority conferred by the Constitution on the Federal Government. There is considerable irony in the Court’s invocation of Marshall to defend a decision allowing a State’s prosecutorial power to run roughshod over the functioning of a branch of the Federal Government…

The subpoena at issue here is unprecedented. Never before has a local prosecutor subpoenaed the records of a sit- ting President. The Court’s decision threatens to impair the functioning of the Presidency and provides no real protection against the use of the subpoena power by the Nation’s 2,300+ local prosecutors. Respect for the structure of Government created by the Constitution demands greater protection for an institution that is vital to the Nation’s safety and well-being.

I therefore respectfully dissent.