January 30, 2023

Volume XIII, Number 30


January 27, 2023

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Supreme Court Update: McGirt v. Oklahoma (No. 18-9526), Trump v. Mazars USA, LLP (No 19-715), Trump v. Vance (No. 19-635)

As promised, we’re back with summaries of the Court’s final three decisions of the term: McGirt v. Oklahoma (No. 18-9526), a remarkable 5-4 decision holding that much of the State of Oklahoma remains part of the Creek Indian Reservation, and the two Trump subpoena cases, Trump v. Mazars USA, LLP (No 19-715), and Trump v. Vance (No. 19-635), which we’re guessing you’ve heard something about by now.

We’ll jump right in with Vance. In 2018, the New York County District Attorneys’ Office opened a criminal investigation apparently into President Trump or his various companies (we say apparently because the details on the investigation are a bit thin). As part of that investigation, and acting on behalf of a grand jury, the office issued a subpoena to Mazars, the personal accounting firm used by President Trump, directing it to produce financial records for the President and some of his companies. Among the items sought were The Tax Returns (i.e., President Trump’s personal tax returns from 2011 to the present).

President Trump responded by suing the New York district attorney, Cy Vance, and Mazars in federal court, seeking an injunction against enforcement of the subpoena. He argued that under Article II and the Supremacy Clause, a sitting president is absolutely immune from state criminal process. Vance did not agree. Mazars concluded this was not its fight and took no position. The district court tried to take the same route, abstaining from exercising jurisdiction under Younger v. Harris. The Second Circuit disagreed with the lower court’s Younger analysis, but turning to the merits, it found no support for the President’s categorical immunity claim. It also rejected an argument raised by the United States, as amicus curiae, that a grand jury subpoena directed at the President must meet a heightened showing of need than would apply if the subpoena were directed at anyone else. The Court granted certiorari, where a majority of seven affirmed while also remanding the case for further proceedings.

Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, began his opinion, obviously, with Aaron Burr. Despite what a certain musical might lead you to believe, his famous duel with Alexander Hamilton is nowhere near the low point of his colorful life. To escape murder charges following the duel, he fled west, where he hatched an outlandish scheme to invade Spanish-controlled Mexico with a private army and form a new nation. When the plot started to fall through, one of his conspirators, General James Wilkinson, ratted him out to then-President Jefferson in a series of letters. Relying on the letters, Jefferson publicly denounced Burr and soon ensured that treason charge were brought against him, charges over which Chief Justice John Marshall (sitting as circuit justice) presided.

In support of his defense, Burr moved to subpoena the letters Wilkinson had sent Jefferson. After four daysof argument, Marshall rejected the prosecution’s claim that the President was immune from a subpoena in a criminal case. At common law, only the king was absolutely protected from having to testify in response to a subpoena, and unlike a king, the President is “of the people” and subject to the law. And if the President could be subjected to a testimonial subpoena, then surely he could be required to turn over a document relevant to a party’s defenses. Despite Marshall’s ruling, Burr never actually obtained the letter, because Marshall soon rejected the prosecution’s core legal theory for its treason charge, resulting in Burr’s acquittal. (We don’t want to know how many days of argument were spent on that.) Prosecutors pressed on, then charging Burr with a misdemeanor, just the ticky-tack offense of trying to incite a war with Spain. (Still on the books—18 U.S.C. § 960—but no longer a misdemeanor.) But those charges too were dropped for lack of evidence.

So how does this relate to The Tax Returns? Well, in the two centuries since the Burrtrial, several presidents accepted Marshall’s ruling as definitively establishing that the chief executive is subject to a subpoena. They have therefore voluntarily turned over documents (and sometimes even given testimony) in response to a valid subpoena in a criminal case. The Court affirmed this understanding of the Burr precedent in 1974, when it rejected President Nixon’s efforts to quash the Watergate prosecutors’ subpoena seeking the President’s tape recordings of Oval Office meetings.

That’s all well and good, President Trump argued, but all this history involves federal criminal proceedings. This case is about a grand-jury subpoena issued by a state court. This makes a difference, the President argued, because requiring the President to deal with his subpoena impairs his performance of his Article II functions, and the Constitution’s Supremacy Clause doesn’t let states interfere with federal authority in that way. As in the Second Circuit, the United States as amicus curiae argued that these same concerns dictate, at the very least, that a state grand-jury subpoena satisfy a heightened standard of need, which this subpoena allegedly did not.

Importantly, neither the President nor the United States argued that this specific subpoena interfered with the President’s ability to carry out his Article II functions. Instead, they made the categorical argument that any subpoena does so for three reasons. First, it would distract the President from his well-known 24/7 focus on carrying out his constitutional duties. Second, forcing the President to respond to a subpoena in a criminal case would tarnish his reputation. (Not even going to try to give you links for that one.) Third, grand-jury subpoenas like this one were just a tool for PRESIDENTIAL HARASSMENT! The majority noted that each of these arguments had already been addressed in prior cases (such as Nixon and Clinton v. Jones). More importantly, while these concerns might be legitimate in some specific cases, the majority saw no reason why these risks should confer absolute immunity. Instead, standard discovery processes, such as moving to quash speculative, bad-faith, or overly burdensome subpoenas should be adequate to protect the President.  

With President Trump’s absolute immunity argument out of the way, the Chief then turned to the United States’ argument that a state grand jury subpoena must satisfy a standard of heightened need to obtain a President’s papers. The United States based this argument on history too, pointing out that in the Burr case, Chief Justice Marshall had noted that if Jefferson invoked executive privilege over his communications, he would not treat the president “like an ordinary individual” but would instead require Burr to swear an affidavit establishing that the documents were “essential to the justice of the case.” The problem with this argument, the Chief observed, is that Marshall was talking about official papers over which the President claimed privilege. As United States v. Nixon held, documents of that nature could only be subpoenaed if the proponent of the subpoena demonstrated a “specific need.” While that standard made good sense when dealing with documents the President relies on in performing his official duties, the majority refused to extend this doctrine to documents of a personal nature, like his private tax returns.

None of this is to say that the President has no protection from abusive or distracting state subpoenas. For one, he can invoke the same protections available to every other citizen to quash bad faith or overly broad subpoenas. And though he is not protected by absolute immunity or a higher standard of need, the President can also raise constitutional challenges to a specific subpoena, arguing that the particulars of the subpoena would impair the President’s performance of his constitutional duties. Thus, while the Court affirmed the Second Circuit’s rejection of President Trump’s proposed categorical immunity, it remanded the case to the lower courts to consider any arguments along these lines he wished to raise.

Justice Kavanaugh, joined by Justice Gorsuch, separately concurred in the judgment. They agreed with the majority that the President did not enjoy absolute immunity from state criminal subpoenas. But they would have extended United States v. Nixon’s heightened need standard to the facts of this case. In their view, that doctrine was less about protecting official documents and more about balancing the need for particular evidence with the problems of intruding on the President’s Article II interests. But they nonetheless concurred in the majority’s judgment to send the case back down to the district court to consider the specificsof this subpoena.

Two members of the Court dissented. Justice Thomas, writing only for himself, agreed with everyone else that the President was not absolutely immune from the issuance of a state grand jury subpoena. But unlike the majority, he thought the President mightbe able to obtain injunctive and declaratory relief against its enforcement. Relying on the Burr case, he would have vacated and remanded the lower courts’ decisions, so they could analyze whether the subpoena would impair the President’s performance of his official duties through distraction, a point on which the President would bear the burden of proof. (In a footnote, he also rejected the Solicitor General’s arguments that the grand jury must show a heightened need for the records sought.)

Finally, Justice Alito dissented, through an analysis quite different from that of his colleagues. He began with what he saw as the essential question (not addressed by anyone else) of whether the Constitution imposes limits on states’ prosecution of a sitting president. Relying on structural arguments, he concluded that the Constitution barred states from prosecuting a president while in office, because defending against criminal charges would necessarily distract and otherwise impair the president’s performance of his constitutional duties. So what happens in cases, like this one, where the state criminal process burdened the President in a less-intrusive way? Here, the better approach was to impose the “heightened need” standard of United States v. Nixon. He would therefore have vacated and remanded so the lower courts could consider whether the district attorney could meet that standard.

We now turn to the second subpoena case, Trump v. Mazars USA, LLP (No 19-715). Like Vance, this case involved subpoenas issued to various third parties (Mazars again, as well as various banks) seeking information about the finances of President Trump, his children, and his businesses. But unlike Vance, these subpoenas came not from a grand jury but from several committees of the House of Representatives. Importantly, these committees based their request for documents not on Congress’s impeachment power, but instead on its legislative power, arguing that the records were relevant to potential legislation on various topics. President Trump, his children, and his businesses sued in two federal courts challenging the subpoenas, but they never contended that the subpoenas sought documents protected by executive privilege. After divided panels of the D.C. Circuit and the Second Circuit upheld the subpoenas, the Court granted cert.

Chief Justice Roberts again had the majority opinion, joined again by the Court’s four liberals and Justices Gorsuch and Kavanaugh (who this time joined the opinion in full). As in Vance, he began with history. But this time, there just wasn’t that much history to talk about. For while Congress has occasionally issued subpoenas seeking documents about the President, disputes about the scope or validity of those subpoenas have historically always been resolved by the political branches without involving the Court. This case, then, marked a “significant departure from historical practice.”

So how could the Court fill this gap? Well, as in Vance, the President and the Solicitor General argued that the Court should apply the same rules the Court has applied in cases where a congressional subpoena seeks documents over which the President asserts executive privilege. If you didn’t know it previously, you’ve probably learned by now that under that standard, the proponent of a subpoena must establish a “demonstrated, specific need” for the information sought. But as in Vance, the majority refused to extend the standard for privileged documents to cases involving non-privileged, private information, because it does not implicate the “sensitive Executive Branch deliberations” the executive privilege doctrine aims to protect.

What’s another option? Well, the House proposed one: Treat the President just like any private individual. On that approach, Congress could subpoena any information that relates to a valid legislative purpose or concerns a subject on which there could be legislation. That’s the standard the lower courts had applied, both of which thought it was appropriate because these subpoenas only sought personal documents from the President in his individual capacity rather than something that would involve “momentous separation-of-powers disputes.” But this approach failed to consider the significant separation of powers issues raised by giving Congress a carte blanch to subpoena anything from the President that could be relevant to potential legislation, a standard that would essentially cover everything in the President’s possession. The majority thus could not ignore that while Congress claimed to be seeking the President’s financial records for legislative purposes, this was not truly a “run-of-the-mill legislative effort” but rather an attempt to get The Tax Returns.

With both side offering chairs of the wrong size, porridge at inedible temperatures, and beds with improper levels of back support, what’s a Court to do? The only thing it can: Create a just-right approach that balances the significant legislative interests of Congress with the unique role of the President in the constitutional structure. The Court noted several “special considerations” that should be included in that analysis. These include whether the asserted legislative purpose warrants the documents sought, whether the subpoena is broader than necessary to support Congress’s purpose, whether Congress has offered adequate evidence that the subpoena could advance the legislative purpose, and the subpoena’s burden on the President’s time and attention. Other considerations may be relevant as well, but as the Chief noted in closing “one case every two centuries does not afford enough experience for an exhaustive list.” Since the lower courts had obviously not applied this just-created standard, the Court vacated and remanded the lower courts’ decisions so they could do so.

As in Vance, Justices Thomas and Alito separately dissented. Justice Thomas began with the point that Congress relied solely on its legislative, not its impeachment power, as the basis for the subpoena. And in his view, Congress’s ability to subpoena documents under that font of power is very narrow indeed: Relying on founding-era precedents, he concluded that Congress couldnot subpoena private, non-official documents at all, whether about the President or anyone else. Thus, Congress’s long-standing practice of doing so, already routine by the mid-19th Century and explicitly upheld by the Supreme Court in 1927, was an unconstitutional innovation. He would overrule it.

Justice Alito, writing only for himself, would not go so far as to hold that legislative subpoenas for non-official documents are categorically barred. But legislative subpoenas seeking a President’s personal documents are “inherently suspicious.” While he agreed with the majority’s decision to vacate and remand, he did not think the Chief’s four “considerations” went far enough. Instead, he would require the House to specifically identify what type of legislation it was considering; to spell out its constitutional authority to enact the potential legislation; and to explain why the subpoenaed information, as opposed to information from other sources, was necessary.

So with all that out of the way, let’s get to what you really want to know: Where can you download The Tax Returns? Bad news on that one. While President Trump may have formally lost these battles, in all likelihood, he’s won the war. In both cases, the Supreme Court’s remand means that the President will have a chance to raise various statutory and constitutional challenges to the subpoenas in lower state and federal courts. Even if the lower courts reject those challenges (and the Supreme Court’s decisions, at least in Vance, suggests they probably will), the cases will then be appealed, perhaps even making another trip to the Supreme Court (though we wouldn’t bet on it). Thus, unless the courts act with unusual speed, there’s more than enough legal wrangling ahead for President Trump to run out the clock past the November election.

Last, but certainly not least, we have one of the most interesting decisions of this term and possibly the most important Indian-law decision in a long time: McGirt v. Oklahoma (No. 18-9526). Jimcy McGirt, a member of the Seminole Nation of Oklahoma, was prosecuted in Oklahoma state court and sentenced to 1,000 years plus life in prison for committing several horrific sex offenses. But in a 5-4 decision, the Supreme Court invalidated his conviction based on the Major Crimes Act, 18 U.S.C. 1153(a), a federal statute providing that members of Indian tribes who commit serious crimes within “Indian country” can only be prosecuted in federal (not state) court. Justice Gorsuch (joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan) concluded that the Major Crimes Act applied, because nearly half the state of Oklahoma, including Tulsa, remains part of the Creek Reservation to this day under the terms of an 1832 treaty between the United States and the Creek Nation. 

In reaching that extraordinary conclusion, Justice Gorsuch reviewed the history of Indian country, from the Trail of Tears to current day Oklahoma. The centerpiece of that history was the 1832 treaty between the United States and the Creek Nation, in which the US promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” Although Congress had never explicitly disowned that promise, in the years since, it has certainly not acted in a manner consistent with it. But the majority opinion held that the enormous demographic, cultural, economic, and legal changes that have taken place since 1832, including the creation of the state of Oklahoma, don’t matter: Only Congress can disestablish a reservation, and it must do so expressly by statute. Thus, while Congress has taken many steps to diminish the authority of the Creeks and alter the governance of their land, it has “never withdrawn the promised reservation” established by the 1832 treaty, so the Court would “hold the government to its word.”

Much of the majority’s decision was devoted to rejecting the dissent’s view that extensive measures Congress has taken over the years effectively disestablished the reservation. In the early 1900s, for example, Congress enabled the allotment of parcels of reservation land to individual Tribe members and others. leaving the reservation land fractured and overwhelmingly owned by non-Indians. But nothing Congress did amounted to a statute disestablishing the reservation, so the Reservation survived allotment. In the same era, Congress passed a series of statutes abolishing the Creeks’ tribal courts and invalidating tribal ordinances. But, while “these congressional intrusions on pre-existing treaty rights” were admittedly “grave,” they “fell short of eliminating all tribal interests in the land.”

Justice Gorsuch also rejected the dissent’s reliance on current demographics (the Tribe’s members comprise only a small fraction of the region’s population today) and longstanding legal and governmental developments, including Oklahoma’s longstanding practice of asserting prosecutorial jurisdiction over Indians in state court. Relying on those factors, when Congress has not passed a statute expressly disestablishing the Reservation, would “allow States and courts to finish work Congress has left undone, usurp the legislative function . . . and treat Native claims of statutory right as less valuable than others.” Succumbing to the “practical advantages of ignoring the written law” would be much easier, Justice Gorsuch acknowledges, but “[t]hat would be the rule of the strong, not the rule of law.” 

Finally, the majority discounts the parade of horribles that Oklahoma and the dissent argued will result from the Court’s decision, including upending the validity of prior criminal convictions and undermining existing civil and regulatory law in eastern Oklahoma. Justice Gorsuch refused to engage in such speculation, arguing that there is no reason why “pessimism should rule the day,” particularly given that ”Oklahoma and its Tribes have proven they can work successfully together as partners.” At the end of the day, “Congress has never withdrawn the promised reservation,” and “[u]nlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.”

The Chief Justice dissented, joined by Justices Alito, Kavanaugh, and (save for one footnote) Thomas. His dissent strongly criticizes the majority for “destabliz[ing] the governance of eastern Oklahoma” on the “improbable ground that, unbeknownst to anyone for the past century, a huge swathe of Oklahoma is actually a Creek Indian reservation.” 

The majority erred, according to the Chief Justice, by looking for a single congressional act expressly disestablishing the reservation. The correct approach under the Court’s precedents is a “contextual inquiry” that focuses on all the relevant congressional acts, the contemporaneous understanding of them, and the subsequent understanding of the status of the reservation. Analyzed properly, in the dissent’s view, Congress disestablished the reservation through “a series of statutes leading up to Oklahoma statehood,” as those statutes were understood and implemented over time. As part of these measures, Congress “systematically dismantled the tribal governments,” dissolved the Tribe’s judicial system, and extinguish[ed] the Creek Nation’s title to the lands,” leaving them only the right to “parcel out the last of its land” to tribal members and others and ultimately incorporating Creek members into the new State of Oklahoma. Looking at all of these congressional acts together, in light of all of the contemporaneous evidence, the dissent saw an unmistakable congressional intent to disestablish the Creek reservation “through a relentless series of statutes leading up to Oklahoma statehood.” The dissent bolstered its argument by noting that the State, cities like Tulsa, and the federal government have all operated for a century on the understanding that there is no longer a Creek reservation; that what was once reservation land is now “predominately populated by non-Indians,” and the enormously disruptive effects the Court’s decision will have on the systems of civil and criminal justice now in place in eastern Oklahoma. 

Justice Thomas penned a separate dissent on jurisdictional grounds. The Oklahoma appellate court held, as an alternative ground for its decision upholding McGirt’s conviction, that his claim that his prosecution was barred by the Major Crimes Act was not previously raised and was therefore waived. Since that was an adequate, non-federal ground to support the Oklahoma court’s decision, the Supreme Court lacked jurisdiction to review the decision. 

And with that, our coverage of the Court’s OT19 term comes to a close. We’ll be back in October, when the Court’s OT20 term kicks off. But before we go, we’d like to close by thanking our stable of helpful ghostwriters: Jeff Babbin, Aaron Bayer, Samuel Breitbart, Tim Cowan, Nicole Dwyer, Emmett Gilles, Richard Luedeman, David Norman-Schiff, Michael Rondon, and Shai Silverman, each of whom has helped out with the Update throughout the past year. It goes without saying that we couldn’t have done it all without your able help.

© 1998-2023 Wiggin and Dana LLPNational Law Review, Volume X, Number 198

About this Author

Tadhg Dooley Appelate Attorney Wiggin Dana New Haven, CT

Tadhg is a Partner in the firm’s Litigation Department, where his practice focuses on appellate and complex civil litigation. He has extensive experience handling appeals in state and federal courts throughout the country and has obtained favorable results for a diverse range of clients, from federal prisoners to foreign presidents, big companies to small towns. Among other recent successes, Tadhg helped a municipality overturn a $6.8 million verdict in the Connecticut Appellate Court, and helped a dental practice overturn a $3.7 million verdict in the Georgia Supreme Court. Tadhg has also...

David Roth Litigation lawyer Wiggin Dana

David is Counsel in Wiggin and Dana’s Litigation Department and a member of the firm’s Appellate, Art and Museum Law, and Intellectual Property Litigation practice groups. He has assisted insurers, universities, large companies, cultural institutions, and sovereign nations in a variety of complex civil litigation and appeals. Representative matters include trademark, copyright, and patent cases; insurance class-actions; art-ownership disputes; and high-stakes business litigation. David has also represented private individuals and companies in several criminal matters and...