John Roberts Won’t Make Trump King

But his compromise means Congress—and the public—may never see Trump’s financial records.

Donald Trump glowers after exiting Marine One, his official helicopter.
President Donald Trump walks to the White House residence after exiting Marine One on June 25. Drew Angerer/Getty Images

The Supreme Court managed to pull off a seemingly impossible balancing act on Thursday: It denied President Donald Trump the sweeping immunity from oversight he demanded while also shielding Trump from oversight before the November election. In Trump v. Vance, the court cleared the way for a New York grand jury to subpoena the president’s tax returns … eventually. In Trump v. Mazars, the court upheld Congress’ authority to investigate the president but stymied (at least for now) its current efforts to do just that. With these two decisions, the Supreme Court—and, specifically, Chief Justice John Roberts—has dealt a blow to Trump’s alarming view of unbridled executive power. Yet it has also protected this particular executive from immediate scrutiny.

Vance and Mazars are different cases that ask a similar question: Is the president above the law while he is in office? Or must his executive authority yield to other compelling interests? In both cases the Supreme Court declared that, no, the president cannot exploit his constitutional powers to insulate himself from all oversight. This ruling is a major blow to Trump, and very good news for the fundamental democratic proposition that the president is not a king. But the court went on to give Trump a temporary victory by sending both cases back down to the lower courts for further assessments. In Vance, this move is probably just a hiccup on the way to a final order sending Trump’s tax returns to a New York grand jury. In Mazars, however, the court’s compromise could functionally kill the House of Representatives’ efforts to get its hands on Trump’s financial records.

Vance pertains to New York County District Attorney Cy Vance’s investigation of shady financial transactions among Trump’s confederates. The DA convened a grand jury that subpoenas the president’s tax returns to gain further insight into his inner circle’s financial chicanery. Trump, backed up by the Department of Justice, argued that the Constitution granted him absolute immunity from state criminal process while in office. (Everyone agrees that a president can be forced to comply with a federal criminal investigation—that’s the upshot of the famed Nixon tape decision.)

Specifically, Trump insisted that complying with a state criminal investigation would impair the exercise of his constitutional duties. Trump said this subpoena will distract him from his work, undermine his leadership, and render him a target for state harassment. The Department of Justice took a more moderate stance, arguing that state criminal subpoenas against the president must be analyzed under a “heightened need” standard. This test would require a showing that the subpoena sought evidence that is “critical” for “specific charging decisions,” and that the subpoena is a “last resort.”

Roberts, joined by the four liberal justices, firmly rejected these arguments. The Constitution, he explained, gives Trump no executive privilege to ignore state subpoenas, and there are already safeguards built into the criminal process that will protect him from harassment. A subpoena of the president’s papers does not obviously interfere with his legal duties. And there are countervailing interests here, chief among them “the public interest in fair and effective law enforcement,” which “cuts in favor of comprehensive access to evidence.”

Yet after reaching this conclusion, Roberts pulled back. He noted that the president could argue that “compliance with a particular subpoena would impede his constitutional duties.” Thus, Roberts sent the case down to the lower courts, giving Trump an opportunity if “the President sets forth and explains a conflict between judicial proceeding and public duties.” What kind of “conflict” would qualify? Roberts doesn’t say, and given everything he said before this point, it seems highly improbable that he would deem any alleged “conflict” sufficient to block the subpoena. Justice Brett Kavanaugh, joined by Justice Neil Gorsuch, concurred in the judgment, but granted more weight to the possibility that a real conflict could exist. Justices Clarence Thomas and Samuel Alito dissented.

Presuming the lower courts act with appropriate speed, Vance should be able to get Trump’s tax returns to the grand jury in the near future. But grand juries are bound by stringent rules of secrecy. There is little chance these documents will be leaked to the public. So the near-term impact of his decision on the president will be muted at best.

Mazars is a different story. That case asks whether the House of Representatives can subpoena Trump’s financial records for the stated purpose of aiding in the legislative process. The House says it wants to pass stricter ethics, disclosure, and transparency laws governing the executive branch. It says it needs Trump’s financial records to uncover undisclosed conflicts of interest and potential foreign entanglements. The House explained that it intends to craft legislation to stop this president—and, more realistically, future presidents—from engaging in covert corruption. Trump fought these subpoenas, arguing that they lack a legitimate legislative purpose and infringe upon the separation of powers. He did not argue that the documents themselves were covered by executive privilege.

Roberts once again wrote for the court in Mazars, a 7–2 decision from which Thomas and Alito dissented. The ruling is a mixed bag for all sides. Roberts affirmed Congress’ “broad” and “indispensable” subpoena power “to secure needed information” in order to legislate. That holding, alone, is a relief, since Trump’s arguments took aim at Congress’ crucial constitutional power to conduct investigations. But Roberts also pointed to limitations on this subpoena power:  Congressional subpoenas must be “related to, and in furtherance of, a legitimate task of the Congress.” They cannot be used for general “law enforcement,” or merely to “punish somebody.” And they cannot violate any individual’s constitutional rights, such as free speech.

Trump and the Department of Justice wanted a much tougher standard: They argued that Congress cannot subpoena a president’s nonprivileged papers until it demonstrates a “specific need” that the information is “demonstrably critical” to its legislative purpose. Roberts rejected that theory outright. But he also pointed to “significant separation of powers issues” raised by this “interbranch conflict.” He announced a new “balanced approach” that will govern these subpoenas: To determine if a congressional subpoena of the president is legitimate, courts must “perform a careful analysis that takes 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.”

What does that mean? Roberts wrote that “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.” Moreover, “courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.” They should also “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 evidence of Congress’s legislative purpose, the better.” Finally, “courts should be careful to assess the burdens imposed on the President by a subpoena,” although “burdens on the President’s time and attention … generally do not cross constitutional lines.”

In practice, this test probably means that Congress can subpoena the president’s financial records so long as it provides a thorough, rigorous, and plausible justification for its actions. Did Congress do so here? It seems likely, since the House did put forth a strong argument that it needs these records to craft important legislation. We don’t know for sure, though, because Roberts sent the case back down to the lower courts to apply this new standard. That process will take months, and it seems doubtful that it will be complete before November, or even January. There is, in other words, a very good chance that this Congress will never get its hands on Trump’s records.

Vance and Mazars are, in sum, a triumph for opponents of unbridled and monarchical executive power. They are also a political setback for Trump’s foes, though Vance, at least, may well be a brief one. Roberts has once again threaded the needle, upholding basic rule of law principles while preventing his court from taking sides in a fight between the House and the president. If the chief justice’s goal was to remove the Supreme Court from the political fray to the greatest extent possible, he has succeeded brilliantly.

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