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The Trump Card of Judicial Review

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In two recent cases—President Donald Trump’s tax returns and staying the cancellation of an Obama programme on immigration—the US Supreme Court stood its ground and though in a situation of subpoena by the Congress, it upheld the separation of powers doctrine

By Prof Upendra Baxi

William Rivers Pitt, a noted American communist, greeted the two recent decisions of the Supreme Court of United States (SCOTUS) thus: “If you were hoping to see Donald Trump’s financial records before the 2020 election, today was not your day. If you were hoping to go to bed tonight in a nation with a president and not a sovereign, sleep tight, because you won.” (Truthout, July 9, 2020).

The distinction between sovereign and an elected head of the executive is enduring. Echoing Lord Chief Justice Cook in the 17th century, Justice HR Khanna immortally reminded us during the Emergency of 1975-76: “Be you ever so high, the law is above you.”

It is no secret that President Donald Trump does not like constitutional constraints; he loves the imperial presidency which bends both the legislative and the judicial will. He enjoys the unique position of not having declared his tax returns as a presidential candidate or as the incumbent. It was unsurprising that as President of the United States (POTUS), he went all the way up to SCOTUS arguing that POTUS is above the law and the constitution, even in a criminal proceedings. But in Vance, a majority led by Chief Justice John Roberts held that (POTUS) is not above the law: “Two hundred years ago” (in 1807), “a great jurist of our Court [Justice John Marshal] established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.”

Thus, repelling the claim, the Court by a majority ruled that the “President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need”. It referred to Justice Marshall who negatived, as far back as in 1807, the contention that justified an exemption by a president’s “duties as chief magistrate” which “demand his whole time for national objects”. But in Justice Marshall’s assessment, those duties were “not unremitting” and any conflict could be addressed by the Court “upon return of the subpoena”. He also concluded that the “propriety of introducing any papers”, would “depend on the character of the paper, not the character of the person who holds it” and would have “due consideration” upon the “return of the subpoena”.

The majority (in which Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined; Justice Brett Kavanaugh, filed a separate  concurring opinion joined by Justice Neil Gorsuch, and Justices Clarence Thomas and Samuel Alito filed dissenting opinions) also negatived the argument from stigma: “The President…  claims that the stigma of being subpoenaed will undermine his leadership at home and abroad”. It held that even if a “tarnished reputation were a cognizable impairment, there is nothing inherently stigmatizing about a President performing the citizen’s normal duty of … furnishing information relevant to a criminal investigation”. Nor “can the risk of association with persons or activities under criminal investigation absolve a President of such an important public duty”. To the third submission concerning the vexatious proceedings to which the POTUS may be exposed to, the SCOTUS simply recognised the ample powers of the federal courts to detect and deter such proceedings.

Equally importantly, the SCOTUS negativised the further claim that a “state grand jury subpoena seeking a President’s private papers should  satisfy a heightened need standard”. The Court momentously said that “absent a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favour of comprehensive access to evidence”. At the same time, the SCOTUS recognised that the POTUS can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause. And he can argue that compliance with a particular subpoena would “impede his constitutional duties”.

New York Attorney General Cyrus Vance Jr. greeted Vance as a triumph by stating: “Our investigation, which was delayed for almost a year by this lawsuit, will resume, guided as always by the grand jury’s solemn obligation to follow the law and the facts, wherever they may lead”. He called the judicial result “a tremendous victory for our nation’s system of justice.” The POTUS is left with all the legal defences that a common citizen has but has no special status conferred by mere incumbency of the White House.

The second decision—Mazars—also delivered on the last working day of the SCOTUS’ summer term, involved three committees of the US House of Representatives which, in April 2019, issued four subpoenas seeking information about the finances of Trump, his children and affiliated businesses. Unlike Vance, the POTUS did not argue that any of the requested records were protected by executive privilege.

By a majority (with dissenting opinions by Justices Thomas and Alito), the SCOTUS upheld the argument from separation of powers doctrine as adopted by the US Constitution. Maintaining that this “dispute is the first of its kind to reach the Court”, the SCOTUS recognised that while “such disputes can raise important issues concerning relations between the branches”, and similar disputes recur on “a regular basis, including in the context of deeply partisan controversy”. It recognised that “Congress and the Executive have nonetheless managed for over two centuries to resolve these disputes among themselves without Supreme Court guidance”.

 The Court characterised the inter-branch collaboration and conflict, or the “rivalry and reciprocity”, as an important aspect of American constitutionalism. In some ways, this was deeply reminiscent of the importance of the “constitutional trust” doctrine enunciated for the Supreme Court of India by Chief Justice Dipak Misra in Lt Governor, Delhi (2018). But the SCOTUS did not go this far; instead, it relied on “on consideration of great weight” in cases concerning “the allocation of power between [the] two elected branches of Government,” which “imposes on the Court a duty of care to ensure that it does not needlessly disturb ‘the compromises and working arrangements’ reached by those branches”.

The SCOTUS also averred that the subpoena must serve a “valid legislative purpose”. Furthermore, the Congress may not issue a subpoena for the purpose of “law enforcement” because that power is assigned to the “Executive and the Judiciary”. And finally, “recipients of congressional subpoenas retain their constitutional rights and various privileges throughout the course of an investigation”.

However, it made crucially the distinction between “cases involving nonprivileged, private information, which by definition does not implicate sensitive Executive Branch deliberations” and constitutionally “privileged information”. The standards proposed by the president and the solicitor-general—that the requested information satisfies a “demonstrated, specific need” if “applied outside the context”—would “risk seriously impeding Congress in carrying out its responsibilities, giving short shrift to its important interests in conducting inquiries to obtain information needed to legislate effectively”.

The SCOTUS uttered a momentous caution that “courts must take 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”. In recognising this, the Court sincerely paid tribute to Alexander Hamilton who wrote, in The Federalist Papers: No. 68, (1788): “The true test of a good government is its aptitude and tendency to produce a good administration.” The Bombay High Court (per Justice Pratap) explicitly recognised the “citizen’s right to a clean administration” and described the democratisation of standing to sue in pro bono cases as articulating claims to  “redeem the future” (per Justice Rele, in proceedings against Chief Minister AR Antulay in the early 80s).

The way in which distinction between “public” and “private” information may be protected by the cannons of judicial rectitude should be of great pertinence to the Supreme Court of India and the High Courts especially in the context of the recent practice of receiving “sealed envelopes” which is fast becoming a judicial commonplace. It raises a serious matter of performing what SCOTUS now calls the exercise of judicial duty with care.

Courts should never overlook the salutary foundational maxim that all justice must be done in broad daylight because justice must be seen to be done in public and its administration cannot ever be a secret activity.

These two judgments need to be read alongside President Trump’s DACA decision (June 18, 2020) that reversed President Barack Obama’s flagship executive immigration programme (Deferred Action for Childhood Arrivals). That decision held applicable the standard of the Administrative Procedure Act, 1946, which required “reasoned elaboration” and “non-arbitrary or capricious standard for public action” for one “suffering legal wrong because of agency action”. This is a resounding decision on constitutional good governance. The power in the executive is not denied but it is held subject in its exercise to a human right to justification (as Professor Rainer Forst rightly calls this).

As I wrote elsewhere recently, the judiciary celebrates not any “hagiography or biography of power” but rather “its biopsy and in extreme situations, its radical therapy”, though it may never be a complete cure for carcinogenic usurpations of power. While the faithful may not attribute any God-like status to justices, one lesson we may all learn is that “the wheels of justice may grind slowly but they grind exceedingly fine”.

—The author is an internationally renowned law scholar, an acclaimed teacher and a well-known writer

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