The Alito dissent seems to suggest Mazars also went against Trump. I’m trying to pull the language now.
To state the obvious, seems that Mazars will be a separate decision, due in a few minutes, and most likely by Roberts.
Got to move on to wait for Mazars, the congressional case, now.
Again by Roberts, again 7-2: From the syllabus: "The courts below did not take adequate account of the signficant separation of powers concerns implicated by congressional subpoenas for the President's information."
Kavanaugh and Gorsuch join in full. Thomas and Alito dissent.
More of a win for the president, it appears. The question presented, Roberts writes, is whether the subpoeans issued exceed the authority of the House under the Constitution.
The chief rejects the "demanding standards" proposed by the president and the solicitor general.
But, he says, the House's approach "fails to take adequate account of the significant separation of powers concerns raised by congressional subpoenas for the President's information."
The Court has vacated the decisions below in Mazars, and it holds that congressional subpoenas may be enforceable but that the courts below did not take account of all the possible separation of powers concerns. The case will this go on. So this issue is back in the hands of the DC and Second Circuits for now.
Roberts lays out a new four-factor test in Mazars, and that will have to be applied initially on a remand to the DC Circuit. The DC Circuit will determine how rigorous a test it is in the first instance.
As Eric outlines below, this is basically a Goldilocks approach. The test proposed by the president and the SG is too tough. The House test is too lax. The court outlines a set of "special considerations" that the courts should take into account on remand and sends the cases back to the lower courts for further consideration. So I am going to take back my suggestion that this is more of a win for the president than Vance -- I think it's basically the same. In this set of cases and the Vance case, we are going to have more litigation, and no one is going to see any financial documents any time soon.
Justice Thomas dissents. He would hold that "Congress has no power to issue a legislative subpoena for private, nonofficial documents -- whether they belong to the President or not."
I do think the dissents suggest that the President is behind in these cases going forward. But the clock is ticking and one of the main issues going forward from a practical perspective is whether these cases can be brought to a conclusion before the election.
Justice Alito dissents too. He agrees "that the lower court erred and that these cases must be remanded," but he does not "think that the considerations outlined by the Court can be properly satisfied unless the House is required to show more than it has put forward to date."
Lots of comments about who is or is not the winner or loser in these cases, and no consensus, which suggests to me that it all depends on your point of view.
On a very quick reading, I have to say the opinion in Vance is pretty indeterminate. It does make some important law going forward on subpoenas from Congress to the president. But as to this case in particular it is fair to characterize it as a punt.
Unlike the Trump v. Vance case, it is a straight-up 7-2 vote: Ginsburg, Breyer, Sotomayor, Kagan, Gorsuch and Kavanaugh all join the chief's opinion, while Thomas and Alito write dissenting opinions.
Orders list at 2 pm today, the Chief says.
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