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Professor Glenn Smith Comments on SCOTUS Records Release Cases

Professor Glenn Smith

On the last day of a COVID-19 delayed Supreme Court term, the justices ruled on two cases that involved President Trump’s release of records.

In Trump v. Vance, the Court ruled that the Manhattan District Attorney Cyrus Vance Jr. had the authority to pursue the president’s tax records and other financial documents.

“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John Roberts wrote for the majority in the 7-2 ruling.

In Trump v. Mazars, the Court put a hold on congressional subpoenas, sending the case back to the lower courts.

California Western’s Professor Glenn Smith joined host Maureen Cavanaugh on #KPBS’ Midday Edition recently to discuss both cases.

“They were both efforts to get the president's tax returns and other personal financial information that's in the hands of third parties,” said Smith. “And in both cases, the Administration [asserted] a very muscular argument of absolute presidential immunity or very strong presidential protection. In Vance, they were completely routed, and it was kind of a mixed decision in the congressional cases.”

Cavanaugh asked Smith to comment on the immunity argument made by Trump and his lawyers, referencing the concern held by many about the expanding power of the presidency.

“In the Vance case,” said Smith. “[The administration] said that no president can have his records, personal or otherwise, subpoenaed while he's in office and that the president is uniquely immune from state grand jury proceedings. And the Court rejected that, saying that was inconsistent with 200 years of law. [The administration] also said, in the alternative, that even if the president is not categorically excluded, a higher standard should be used—we should borrow from the Nixon tapes case of Watergate and borrow the standard that requires a very specific showing of need. And the Court rejected that as well.”

In terms of what happens now, Smith said that both cases would go back to court. In the case of Vance, Smith said the Court has cleared away the administration’s extra arguments that Trump was president, but the court left him in the position of any other recipient of a subpoena who can make claims if the subpoena is too broad or that it invades his privacy.

“So the lower courts dealing with the grand jury subpoena will, I'm sure, hear a whole bunch of arguments from President Trump's lawyers that he like any other subpoena recipient is having his rights interfered with,” said Smith.

In the case of the congressional committee's challenge, said Smith, the controversy goes back to the lower courts in D.C. and New York. Basically, what the Court did in the congressional case is say, the administration's argument goes too far, but the House’s argument doesn't protect the president enough.

“So, bottom line,” said Smith, “Nobody's going to see any tax returns before November, barring an incredibly unpredictable fast trip through the courts.”

The most important aspect of these cases, said Smith, is that they affirm the separation of powers, and affirm that the President of the United States is not above the law.

“As the court specifically said in one of the majority opinions, that's a really important theme now to send, not only for this president but any president to realize that the normal rules that govern how you're expected to participate in state court proceedings or how you're expected to interact with Congress apply. Some of the Administration arguments went very far away from that principle. And so, I'm really glad that the Court brought us back to that.”

Listen to Professor Smith’s full interview with KPBS’ Maureen Cavanaugh here.