If there was one word that defined the Supreme Court’s oral arguments on Tuesday, it was “burden.” President Donald Trump’s lawyers and the Justice Department alike urged the justices to reject a batch of subpoenas from the House of Representatives and Manhattan district attorney Cy Vance Jr. which seek to pry loose Trump’s financial records and tax returns. The arguments covered a wide swath of constitutional territory, including the scope of legislative and executive powers and the presidency’s relationship with the states.
But that word was almost inescapable. All of the parties involved seemed to agree that complying with the subpoenas would burden the president to some degree. In the eyes of his lawyers, that burden would be so onerous that it would, at the very least, compromise his ability to perform his official duties, if not undermine the executive branch itself.
Most of the debate surrounding these two cases focused on abstract principles like the separation of powers and the rule of law. But in Tuesday’s oral arguments, it was striking how both sides seemed to take for granted that the existence of this “burden” was self-evident. In truth, it’s hard to see how these subpoenas would actually create a tangible hardship for the executive branch were they enforced. What’s more, the presumption that they could actually disrupt the government itself appears to rest on a misunderstanding of how the executive branch actually works—under this president or any other.
At issue in both cases is whether the president is immune from official scrutiny or, if not, to what degree he is shielded from it. In Trump v. Mazars, Trump is resisting subpoenas from multiple House committees seeking his financial and business records. In Trump v. Vance, he is trying to fend off a similar investigation by the Manhattan district attorney’s office through a grand jury in New York. The queries are well-founded: Trump is alone among post-Watergate presidents in not releasing his recent tax returns to the public, and there is ample reporting that raises questions about potential irregularities within them.
Trump tried to fight both sets of subpoenas in the lower courts without success. His personal lawyers urged the Supreme Court to intervene in his favor on a medley of grounds. In Mazars, they cast the House committees’ subpoenas as procedurally flawed and argued that their scope and purpose violated the separation of powers. His legal team made a simpler, yet considerably more audacious argument in Vance: that Trump is immune from prosecution while in office. “Criminal process targeting the president is a violation of the Constitution,” Jay Sekulow, one of Trump’s personal lawyers, told the justices.
Most of the oral arguments in Vance and some of Mazars revolved around the 1997 case Clinton v. Jones. Bill Clinton argued that he was immune from civil lawsuits in his private capacity while in office in a bid to fend off a sexual-harassment lawsuit by Paula Jones. The Supreme Court unanimously rejected that claim, clearing the way for Jones to force Clinton to give a deposition in that case which subsequently led to his impeachment. Clinton had asserted that civil litigation would pose too great a burden to presidents and distract them from their official duties.
But the justices were unswayed. Past presidents had complied with civil lawsuits while in office. Justice John Paul Stevens, writing for the court, also noted that the federal courts routinely review and even strike down a president’s official acts without issue—a far greater blow to the conduct of the executive branch’s duties than any civil litigation could offer. “The burden on the President’s time and energy that is a mere byproduct of such review surely cannot be considered as onerous as the direct burden imposed by judicial review and the occasional invalidation of his official actions,” Stevens wrote.
Trump’s lawyers tried to emphasize what the Jones Court had also acknowledged: that the president, by virtue of being a single individual, is unique in the American constitutional order. “He is the sole person in whom all executive power is vested,” Solicitor General Noel Francisco told the justices on Tuesday. “And so that necessarily implies that there are limits on what others can do to unduly burden him in his ability to do his job.” Francisco urged the court to adopt a more stringent standard for subpoenas that affect sitting presidents at a minimum, though he did not disagree with Sekulow’s plea for temporary immunity.
“Why isn’t it sufficient just to apply ordinary standards?” Justice Stephen Breyer asked Sekulow at one point. “I gather ordinarily any person who gets a subpoena can come in and say it’s unduly burdensome. And what counts as unduly burdensome for a doctor who is in the middle of an operation might be very different from a person who’s a salesman, and similarly for the president. All the factors you raise could come in under the title unduly burdensome.”
Sekulow rejected that premise, arguing that the president’s unique status afforded him a unique level of protection from scrutiny. “Let’s assume the president were to hire me,” Sekulow said, “[and] that I’m going to call the president of the United States today and say, ‘I know you’re handling a pandemic right now for the United States, but I need to spend a couple, two to three hours with you going over a subpoena of documents that are wanted by, here, the New York County District Attorney.”
His implication—that complying with subpoenas could hinder things like the pandemic response—is baseless for a very simple reason. Presidents do not “execute” or “enforce” federal law on a day-to-day basis. Trump, like all human beings, is limited by space and time. He does not process visa applications on the southern border, or deliver mail to remote Alaskan towns, or monitor astronaut spacewalks at mission control in Houston, or review clinical trials for new drugs seeking federal approval, much less perform all of these activities at the same time. The laws of physics make it impossible for him to represent the U.S. in every federal court around the country, or in every embassy in foreign capitals around the world.
Fortunately for presidents, they do not work alone. Roughly 2.1 million Americans currently work in the executive branch to carry out all the functions that the chief executive cannot personally perform. Those civil servants are organized in various agencies and departments where they can be overseen by members of his Cabinet. Trump can hire those officials, give them a variety of orders, and even fire them. (The Supreme Court is even considering a case this term to decide just how far those powers can go.) It’s safe to say that he and his predecessors don’t enforce or execute the laws of the United States so much as they supervise those who do.
Indeed, Trump himself shows how little time the chief executive can actually spend executing the laws. On the same morning that his lawyers argued before the court, Trump began his day by opining on a HBO show’s host and ratings and insinuating that a former member of Congress and current MSNBC host may have murdered a congressional aide in Florida in 2001. White House records obtained by Axios last year showed that Trump spends most of his mornings in unstructured “executive time,” where he calls friends and allies, watches cable news, and discusses it on Twitter. The Washington Post estimated on Tuesday that the president may have spent as much as nine full days of his presidency just writing Twitter posts.
If this president (or Barack Obama, or George W. Bush) spent his mornings processing patent applications or approving small-business loans, I might be more sympathetic to the “burden” argument. But that’s simply not the case. If anything, presidents may have an easier time dealing with civil litigation or criminal proceedings than virtually any other American. The White House employs a sizable staff that prepares his meals, does his laundry, and performs any and all housekeeping duties. A coterie of West Wing aides stand ready to orchestrate his daily schedule and workflow. If necessary, he can even delegate virtually any part of his job other than signing legislation and issuing pardons to handpicked Cabinet members or trusted advisors.
Let’s say, for the sake of argument, that you want to pretend that Trump actually single-handedly runs the entire federal government. Even then, these subpoenas still wouldn’t amount as a burden on him because they aren’t actually directed at him. Both the House committees and the Manhattan district attorney’s office are seeking records from third parties. The “Mazars” in Trump v. Mazars, for example, is the Trump administration’s longtime accounting firm. That means that the practical burdens of complying with the subpoenas—hiring legal counsel, poring through documents, finding the relevant ones, double-checking that nothing was missed, and handing them over to investigators—aren’t actually borne by Trump at all.
That doesn’t mean it should be open season on the White House, of course. Under Jones, federal courts have wide discretion to adjust their processes to minimize potential impacts on a president’s day-to-day work. If the state of New York tried to arrest a sitting president, put him on trial, or incarcerate him in any way, I’d be far more willing to believe that the executive branch’s workings would be noticeably disrupted. Vance’s office, for its part, disarmed those constitutional hand grenades during Tuesday’s oral arguments by stipulating that it did not think it could actually prosecute a sitting president as a constitutional matter, let alone a practical one.
Doug Letter, the House’s lawyer, briefly noted in an exchange with Justice Clarence Thomas that the subpoenas posed far less of a burden than it seemed. “They are to private business entities,” he asserted. “Nothing is required of the president here for these subpoenas to be fully complied with. Not a single thing is required of the president or the White House.” That did not seem to persuade Thomas. “But I think we all know it’s about the president,” he replied.
The only thing might be “burdened” if the subpoenas are enforced is the president’s political and legal fortunes. At least one of the justices sounded wary about the prospect of letting Trump’s financial records and tax returns out of his grip at all. “We both know that prosecutors have different—that there are prosecutors who leak all sorts of information, including grand jury information, to all sorts of media sources, including specifically The New York Times,” Justice Samuel Alito told Carey Dunne, who argued on behalf of Vance. “If there were a showing that that was a risk, would that have a bearing on this?”
It was a stunning assertion for both its implications and its source. Alito, a former federal prosecutor himself, is usually the most sympathetic member of the court to that profession. But in this case, he all but suggested that New York’s prosecutors might illegally divulge grand-jury materials to the public to damage Trump if they win. Dunne, who sounded taken aback by the comment, affirmed that they would not break the law. The exchange pointed to a more basic truth about the cases, at least for some of those involved: the real “burden” isn’t on Trump’s ability to do the job, but his ability to keep it after November.