Updates

Supreme Court: Sitting Presidents Not Immune in State Court Cases

Declaration 17analysis

In July 2020, the U.S. Supreme Court held that no categorical immunity or “heightened standard” bars state prosecutors states from issuing a “state criminal subpoena to a sitting President”

President Trump and his affiliated businesses had been subpoenaed for their financial recorrds by the District Attorney of New York County. President Trump then sued the District Attorney and Mazars to stop the enforcement of the subpoena. Citing Article II of the Constitution and the Supremacy Clause, Trump’s attorneys said that, as a sitting President, he should be granted absolute immunity from state criminal procedures.

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In Trump Financial Records Case, Supreme Court Offers Standards for Seeking Presidential Documents

Declaration 17analysis

In a July decision, the U.S. Supreme Court delayed a congressional request for President Trump’s financial records, remanding the Trump v. Mazars USA case back to the D.C. Circuit court and issuing a “balancing test” for similar subpoenas. Trump is suing Mazars to prevent them from complying with an April subpoena from the House Committee on Oversight and Reform, demanding private financial records that belong to the president and several affiliated businesses.

Trump’s attorneys said that the subpoena violated the separation of powers and did not have a “legitimate legislative purpose.” They did not argue that executive privilege protected any of the requested financial records.

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Supreme Court Rules Against DHS, Calls DACA Termination “Arbitrary and Capricious”

Declaration 17analysis, immigration

On June 18, the Supreme Court ruled against the Department of Homeland Security in the legal battle over the termination of the DACA program, which protects immigrants who came to the United States as children from immediate deportation. The court’s 5 to 4 vote in favor of the Regents of the University of California, found that DHS’s decision to end DACA was “arbitrary and capricious” under the Administrative Procedure Act (APA). Justice John G. Roberts, Jr. wrote the majority opinion in the decision.

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Supreme Court Says Title VII Includes Protections for Sexual Orientation and Gender Identity

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In a significant ruling in June, the U.S. Supreme Court voted 6 to 3 to include protections for sexual orientation and gender identity under Title VII. The ruling covered three cases the Court had before them, all involving employees who had been fired shortly after revealing that they were homosexual or transgender.

As noted in the majority opinion written by Justice Neil Gorsuch in Gerald Lynn Bostock v. Clayton County, Georgia, “Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. 78 Stat. 255, 42 U. S. C. §2000e–2(a)(1).”

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Emoluments: Court of Appeals Recommends Dismissal of Suit by Members of Congress

Declaration 17analysis, emoluments

The U.S. Court of Appeals for the District of Columbia ruled this month that 215 members of Congress lacked the legal standing to sue President Trump for violations of the Foreign Emoluments Clause of the Constitution, reversing a district court decision from September 2018.

The 3-0 decision issued on February 7 was limited to the issue of whether the lawmakers had legal standing to file their original 2017 lawsuit. The ruling in Richard Blumenthal, et al., v. Donald J. Trump, in his official capacity as President of the United States of America held that the 215 members of Congress lacked that standing and remanded the case to the district court “with instructions to dismiss the complaint.”

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Supreme Court Gives Trump Temporary Win on Green Card Restrictions

Declaration 17analysis, immigration, travel ban

In late January, the U.S. Supreme Court voted 5 to 4 to allow a Department of Homeland Security rule change denying green cards and other temporary visas to noncitizens deemed a “public charge.” Under the new immigration rule, the government can consider whether a noncitizen is likely to become reliant on government assistance (or become a “public charge”) for more than 12 months over a three-year period, based on factors such as finances, employment history, and age.

The January 27 ruling in Department of Homeland Security, et al. v. New York, et al. is temporary, pending “the Government’s appeal in the United States Court of Appeals for the Second Circuit and disposition of the Government’s petition for a writ of certiorari, if such writ is timely sought.”

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Second Circuit Reversal Advances Emoluments Case Against Trump

Declaration 17analysis, emoluments

The U.S. Court of Appeals has vacated a lower court decision that blocked the Emoluments case against President Trump. The September 13 ruling in Citizens for Responsibility and Ethics in Washington v. Trump, reversed the United States District Court for the Southern District of New York (George B. Daniels, J.), which had granted the president’s motion to dismiss the action based on the Domestic and Foreign Emoluments Clauses of the Constitution.  The Second Circuit vacated and remanded this decision in a decision written by circuit judge Pierre N. Leval. Judge John M. Walker, Jr.  issued a dissenting opinion, largely drawing on a similar case in the Fourth Circuit.

The plaintiffs, some of whom are hoteliers and restaurant-owners, allege that “they directly compete with the president’s establishments for foreign, state, and federal government clientele” and have lost business after November 2016, according to the Second Circuit’s ruling. The plaintiffs also claim that the president has been “implicitly soliciting the patronage of government officials” and that “he favors governments that patronize his businesses” and that this had the desired effect – governments and diplomats spending money at the Trump establishments. The president’s receipt of the revenues would thus violate the Foreign and Domestic Emoluments Clauses. The plaintiffs seek declaratory and injunctive relief, viz. a declaration from the courts that the president’s conduct violates the constitution and an injunction to stop this behavior and release financial records.

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Federal Judge Eviscerates Trump’s Challenge to Tax Return Subpoena

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In a strongly worded ruling last week,  Federal District Judge Victor Marrero rejected Donald Trump’s attempt to protect his tax returns from a grand jury subpoena. Trump sought a preliminary injunction to block the state subpoena for the returns held by his accounting firm, Mazars.

The October 7, 2019 ruling in Trump v. Vance et al. eviscerated Trump’s lawyers’ arguments, which amounted to a claim that “the person who serves as President, while in office, enjoys absolute immunity from criminal process of any kind” including “investigations, grand jury proceedings and subpoenas, indictment, prosecution, arrest, trial, conviction, and incarceration…” and that this doctrine would extend to any affiliate of the president who may have collaborated with him.

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