Do Article II and the Supremacy Clause categorically preclude, or require a heightened standard of need for, the issuance of a state grand jury criminal subpoena to a sitting President for his private papers?

In the summer of 2018, the New York County District Attorney's Office opened an investigation into business transactions involving multiple individuals whose conduct may have violated state law. A year later, acting on behalf of a grand jury, the office served a subpoena duces tecum on Mazars USA, LLP, the personal accounting firm of President Donald J. Trump. The subpoena demanded financial records relating to the President and affiliated business organizations, including tax returns and related schedules, from 2011 to the present. It essentially copied a subpoena issued to Mazars by a House committee. The parties agreed the papers belong to the President and Mazars is merely the custodian, so the subpoena is functionally directed at the President. The President, acting in his personal capacity, sued the district attorney and Mazars to enjoin enforcement, arguing that a sitting President enjoys absolute immunity from state criminal process. He did not contend that this subpoena was itself unduly burdensome. The United States, as amicus curiae, argued that such a subpoena must at least satisfy a heightened showing of need. Mazars took no position.

The President sued in the United States District Court for the Southern District of New York, seeking declaratory and injunctive relief against enforcement of the subpoena. The District Court abstained and dismissed under Younger v. Harris, and in the alternative held that the President was not entitled to injunctive relief. The Second Circuit held that Younger abstention was inappropriate because state and federal actors were already in conflict, but affirmed the denial of a preliminary injunction. It concluded that presidential immunity does not bar enforcement of a state grand jury subpoena directed to a third party for nonprivileged material, and it rejected the amicus argument that a heightened showing of need applies. It directed that the case return to the District Court, where the President could raise further arguments. The Supreme Court granted certiorari.

(Roberts, J.)

No. Article II and the Supremacy Clause neither categorically preclude nor require a heightened standard of need for a state grand jury subpoena seeking a sitting President's private papers.

Absolute immunity is unwarranted. Chief Justice Marshall in United States v. Burr, 25 F. Cas. 30 (1807), held that the President does not stand exempt from compulsory process, and two centuries of practice and United States v. Nixon, 418 U.S. 683 (1974), confirm that federal criminal subpoenas do not impermissibly impair the Executive. The President argued that state subpoenas pose unique burdens of diversion, stigma, and harassment, but none justifies categorical immunity.

Diversion: Nixon v. Fitzgerald, 457 U.S. 731 (1982), did not rest immunity on distraction alone, and Clinton v. Jones, 520 U.S. 681 (1997), expressly rejected distraction as a ground for absolute immunity. The President concedes he may be investigated in office, so his objection reaches only the incremental burden of the subpoena, which precedent subjects him to even when he is under investigation.

Stigma: there is nothing inherently stigmatizing about furnishing information to a criminal investigation, and grand jury secrecy rules guard against reputational harm.

Harassment: grand juries may not conduct fishing expeditions or act in bad faith, federal courts may intervene against bad-faith state proceedings, and the Supremacy Clause bars state efforts to manipulate or retaliate against a President for official acts.

A heightened need standard is also unwarranted, for three reasons. First, the standard derives from executive privilege cases about official documents, while Burr treats a President's private papers as standing in nearly the same situation as any other individual's. Second, no showing has been made that heightened protection is necessary for the Executive to perform Article II functions. Third, in the absence of such a need, the public interest in effective law enforcement favors comprehensive access to evidence, and a heightened standard could cost investigative leads and exculpatory evidence.

The President retains protections: state-law challenges for bad faith, overbreadth, and undue burden, with the high respect owed the office informing the proceedings; Supremacy Clause challenges to subpoenas meant to influence official duties; and arguments that compliance would impede his constitutional duties. The judgment is affirmed and remanded.

Concurring in the judgment (Kavanaugh, J., joined by Gorsuch, J.) The Nixon "demonstrated, specific need" standard should govern, because this case again pits the interests of the criminal process against the Article II interests of the Presidency. The standard guards against unwarranted burdens by allowing a prosecutor to obtain a President's information only in defined circumstances. The majority's safeguards (bad faith, harassment, undue burden, interference with official duties, and relevance) are Article II requirements, not merely state-law ones, and may be raised in state or federal court. Lower courts will have to examine why and how much the State needs the information, whether it could be obtained elsewhere, and whether compliance would unduly burden the President's duties. The case should be remanded.

Dissent (Thomas, J.) The text of the Constitution, the ratification-era understanding, and Burr show that the President has no absolute immunity from the issuance of a subpoena. Burr also provides the standard for relief from enforcement: the President is entitled to relief if he shows that his duties as chief magistrate demand his whole time for national objects. Courts are poorly placed to second-guess the President's account of his duties, particularly in foreign affairs and national defense. The Court should have vacated and remanded for the District Court to decide whether enforcement should be enjoined under that standard. The majority answers that it agrees the case will be remanded to the District Court, and the disagreement is only that it affirms while Thomas would vacate. A heightened need standard should be rejected, but for a different reason: it addresses an independent question, and the grand jury's need should be left to state law.

Dissent (Alito, J.) The Presidency is an indispensable institution, and under McCulloch v. Maryland a State's sovereign power to enforce its criminal laws must yield to it. A sitting President cannot be prosecuted by a State, and the impeachment provisions confirm that criminal liability follows removal. A subpoena should not be enforced against a President unless a heightened standard is met, as in Burr, Nixon, and the D.C. Circuit's Watergate-era cases. The prosecutor should have to describe the offenses under investigation, show how the records relate to them, explain why the records are needed, and explain why production is needed now rather than after the term ends. The majority's reliance on grand jury secrecy and state-law objections gives the Presidency no real protection against harassment by the Nation's 2,300 local prosecutors. The majority answers that its holding does not let States run roughshod over the Executive, because the Supremacy Clause bars state interference with official duties and a President may raise that and other subpoena-specific challenges in federal court.