The Supreme Court issued its final decisions of the term today, resolving the long-running dispute over Donald Trump’s financial records and the status of eastern Oklahoma. The Court resoundingly rejected claims of Presidential immunity, but also roundly rejected the House of Representatives’ claims of unlimited investigatory authority. The Court also ruled in favor of Native American claims against Oklahoma, in a 5-4 decision that produced the first and only dissent by Chief Justice Roberts so far this term (and only his second dissenting vote).
The first opinion of the day was McGirt v. Oklahoma, one of the most fascinating (and under-explored) cases of the term. Justice Gorsuch wrote for a five-justice majority that, for purposes of the Major Crimes Act, much of eastern Oklahoma is still “Indiana country,” and therefore the state lacks the jurisdiction to criminally prosecute members of Native American tribes for offenses covered by the Major Crimes Act.
Joined by the Court’s liberals, here is how Justice Gorsuch’s opinion begins:
On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in
the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat. 418 (1833 Treaty). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368.
Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.
Chief Justice Roberts wrote a dissent (his only authored dissent of the term), joined by the other conservatives, save for footnote 9 (which Justice Thomas did not join). Justice Thomas also wrote a separate dissent.
The Court also issued a one line per curiam opinion in Sharp v. Murphy, a case raising the same issue that had been held over from last term, presumably because the Court split 4-4. Justice Gorsuch was recused from that case. Sharp was decided 6-2 in accord with McGirt. Justice Thomas and Alito noted their dissent.
Chief Justice Roberts had the majority opinions in both Trump financial records cases, both of which were decided 7-2. First up was Trump v. Vance, in which the Court rejected Trump’s claims of immunity from state grand jury proceedings. The Court was unanimous in rejecting Trump’s claims of absolute immunity, but split 5-2-2 on the proper standard to apply.
Chief Justice Roberts, writing for himself and the Court’s four liberals, concluded that neither Article II of the Constitution nor the Supremacy Clause bar a state criminal subpoena for the personal records of a sitting president, nor do they require a heightened standard. Nonetheless, Roberts also concluded that a sitting President can still make specific objections to specific elements of a subpoena, and the lower courts will have to consider such objections on remand.
His opinion for the Court begins:
In our judicial system, “the public has a right to every man’s evidence.”1 Since the earliest days of the Republic, “every man” has included the President of the United States. Beginning with Jefferson and carrying on through Clinton, Presidents have uniformly testified or produced documents in criminal proceedings when called upon by federal courts. This case involves—so far as we and the parties can tell—the first state criminal subpoena directed to a President. The President contends that the subpoena is unenforceable. We granted certiorari to decide whether Article II and the Supremacy Clause categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President.
His opinion for the Court concludes:
Two hundred years ago, a great jurist of our Court established that no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding. We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need. The “guard furnished to this high officer” lies where it always has—in “the conduct of a court” applying established legal and constitutional principles to individual subpoenas in a manner that preserves both the independence of the Executive and the integrity of the criminal justice system. . . .
The arguments presented here and in the Court of Appeals were limited to absolute immunity and heightened need. The Court of Appeals, however, has directed that the case be returned to the District Court, where the President may raise further arguments as appropriate.
We affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.
Jsutice Kavanaugh, joined by Justice Gorsuch, concurred in the judgment, arguing that the standard for a state criminal subpoena should be the “demonstrated, specific need” test adopted by the Court in United States v. Nixon.
Justices Alito and Thomas each wrote a separate dissent. While neither embraced the argument that the President is immune from the issuance of any subpoena, they both believed the lower court decision should be vacated as the President may be entitled to relief against enforcement of the subpoena while he remains in office.
The Chief Justice also had the opinion for the Court in Trump v. Mazars, and this decision was also 7-2. In this decision the Court rejected the claims of both sides, reaffirming Congressional authority to conduct oversight, but roundly rejecting the claims put forward by the House of Representatives, and vacating the lower court decisions from the U.S. Courts of Appeals for the Second and D.C. Circuits. Of note, not a single justice voted to uphold the lower court decisions or to embrace the House of Representatives’ legal theory.
Chief Justice Roberts opinion for hte Court was joined by the Court’s four liberals and Justices Gorsuch and Kavanaugh. Justices Alito and Thomas each dissented.
(developing . . . still being updated)