Monthly Archives: August 2020

Trump v. Vance

Trump v. Vance, decided July 9. President of the United States is not immune from subpoena issued by state prosecutor.

Syllabus appears below.

Here’s the full opinion.

For anyone interested, here’s oral argument. A good one for those interested in the workings of our government and courts.


TRUMP v. VANCE, DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK, ETAL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUITNo. 19–635. Argued May 12, 2020—Decided July 9, 2020 In 2019, the New York County District Attorney’s Office—acting on be-half of a grand jury—served a subpoena duces tecum on Mazars USA, LLP, the personal accounting firm of President Donald J. Trump, for financial records relating to the President and his businesses. The President, acting in his personal capacity, sued the district attorney and Mazars in Federal District Court to enjoin enforcement of the sub-poena, arguing that a sitting President enjoys absolute immunity from state criminal process under Article II and the Supremacy Clause. The District Court dismissed the case under the abstention doctrine of Younger v. Harris, 401 U. S. 37, and, in the alternative, held that the President was not entitled to injunctive relief. The Second Circuit re-jected the District Court’s dismissal under Younger but agreed with the court’s denial of injunctive relief, concluding that presidential im-munity did not bar enforcement of the subpoena and rejecting the ar-gument of the United States as amicus curiae that a state grand jury subpoena seeking the President’s documents must satisfy a height-ened showing of need. Held: Article II and the Supremacy Clause do not categorically preclude, or require a heightened standard for, the issuance of a state criminal subpoena to a sitting President. Pp. 3–22. (a) In 1807, John Marshall, presiding as Circuit Justice for Virginia over the treason trial of Aaron Burr, granted Burr’s motion for a sub-poena duces tecum directed at President Jefferson. In rejecting the prosecution’s argument that a President was not subject to such a sub-poena, Marshall held that a President does not “stand exempt” from the Sixth Amendment’s guarantee that the accused have compulsory process for obtaining witnesses for their defense. United States v.

2 TRUMP v. VANCE Syllabus Burr, 25 F. Cas. 30, 33–34. The sole argument for an exemption was that a President’s “duties as chief magistrate demand his whole time for national objects.” Ibid. But, in Marshall’s assessment, those duties were “not unremitting,” ibid.,and any conflict could be addressed by the court upon return of the subpoena. Marshall also concluded that the Sixth Amendment’s guarantee extended to the production of pa-pers. “[T]he propriety of introducing any papers,” he explained, 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. Id., at 34, 37. Jefferson agreed to furnish whatever justice required, subject to the prerogative to decide whether particu-lar executive communications should be withheld. In the two centuries since Burr, successive Presidents from Monroe to Clinton have accepted Marshall’s ruling that the Chief Executive is subject to subpoena and have uniformly agreed to testify when called in criminal proceedings. In 1974, the question whether to compel the disclosure of official communications over the President’s objection came to a head when the Watergate Special Prosecutor secured a subpoena duces tecum di-recting President Nixon to produce, among other things, tape record-ings of Oval Office meetings. This Court rejected Nixon’s claim of an absolute privilege of confidentiality for all presidential communica-tions. Recognizing that “compulsory process” was imperative for both the prosecution and the defense, the Court held that the President’s “generalized assertion of privilege must yield to the demonstrated, spe-cific need for evidence in a pending criminal trial.” United States v.Nixon, 418 U. S. 683, 713. President Nixon dutifully released the tapes. Pp. 3–10. (b) This history all involved federal criminal proceedings. Here, the President claims that the Supremacy Clause gives a sitting President absolute immunity from state criminal subpoenas because compliance with such subpoenas would categorically impair the performance of his Article II functions. The Solicitor General, arguing on behalf of the United States, claims that a state grand jury subpoena for a sitting President’s personal records must, at the very least, meet a heightened standard of need. Pp. 10–22. (1) The President’s unique duties as head of the Executive Branch come with protections that safeguard his ability to perform his vital functions. The Constitution also guarantees “the entire independence of the General Government from any control by the respective States.” Farmers and Mechanics Sav. Bank of Minneapolis v. Minnesota, 232 U. S. 516, 521. Marshall’s ruling in Burr, entrenched by 200 years of practice and this Court’s decision in Nixon, confirms that federal crim-inal subpoenas do not “rise to the level of constitutionally forbidden

Cite as: 591 U. S. ____ (2020) 3 Syllabus impairment of the Executive’s ability to perform its constitutionally mandated functions.” Clinton v. Jones, 520 U. S. 681, 702–703. But the President claims that state criminal subpoenas necessarily pose a unique threat of impairment and thus require absolute immunity. His categorical argument focuses on three burdens: diversion, stigma, and harassment. Pp. 10–17. (i) The President contends that complying with state criminal sub-poenas would necessarily distract the Chief Executive from his duties. He grounds that concern on Nixon v. Fitzgerald, which recognized a President’s “absolute immunity from damages liability predicated on his official acts.” 457 U. S. 731, 749. But, contrary to the President’s suggestion, that case did not hold that distraction was sufficient to confer absolute immunity. Indeed, the Court expressly rejected im-munity based on distraction alone 15 years later in Clinton v. Jones, when President Clinton sought absolute immunity from civil liability for private acts. As the Court explained, Fitzgerald’s “dominant con-cern” was not mere distraction but the distortion of the Executive’s “decisionmaking process.” 520 U. S., at 694, n. 19. The prospect that a President may become “preoccupied by pending litigation” did not ordinarily implicate constitutional concerns. Id., at 705, n. 40. Two centuries of experience likewise confirm that a properly tailored crim-inal subpoena will not normally hamper the performance of a Presi-dent’s constitutional duties. The President claims this case is different. He believes that he is under investigation and argues that the toll will necessarily be heavier in that circumstance. But the President is not seeking immunity from the diversion occasioned by the prospect of future criminal liability. He concedes that he may be investigated while in office. His objection is instead limited to the additional distraction caused by the subpoena itself. That argument, however, runs up against the 200 years of prec-edent establishing that Presidents, and their official communications, are subject to judicial process, see Burr, 25 F. Cas., at 34, even when the President is under investigation, see Nixon, 418 U. S., at 706. Pp. 12–14. (ii) The President next claims that the stigma of being subpoenaed will undermine his leadership at home and abroad. But even if a tar-nished reputation were a cognizable impairment, there is nothing in-herently stigmatizing about a President performing “the citizen’s nor-mal duty of . . . furnishing information relevant” to a criminal investigation. Branzburg v. Hayes, 408 U. S. 665, 691. Nor can the risk of association with persons or activities under criminal investiga-tion absolve a President of such an important public duty. The conse-quences for a President’s public standing will likely increase if he is

4 TRUMP v. VANCE Syllabus the one under investigation, but the President concedes that such in-vestigations are permitted under Article II and the Supremacy Clause. And the receipt of a subpoena would not seem to categorically magnify the harm to the President’s reputation. Additionally, in the grand jury context longstanding secrecy rules aim to prevent the very stigma the President anticipates. Pp. 14–15. (iii) Finally, the President argues that subjecting Presidents to state criminal subpoenas will make them “easily identifiable target[s]” for harassment. Fitzgerald, 457 U. S., at 753. The Court rejected a nearly identical argument in Clinton, concluding that the risk posed by har-assing civil litigation was not “serious” because federal courts have the tools to deter and dismiss vexatious lawsuits. 520 U. S., at 708. Har-assing state criminal subpoenas could, under certain circumstances, threaten the independence or effectiveness of the Executive. But here again the law already seeks to protect against such abuse. First, grand juries are prohibited from engaging in “arbitrary fishing expeditions” or initiating investigations “out of malice or an intent to harass,” United States v. R. Enterprises, Inc., 498 U. S. 292, 299, and federal courts may intervene in state proceedings that are motivated by or conducted in bad faith. Second, because the Supremacy Clause pro-hibits state judges and prosecutors from interfering with a President’s official duties, any effort to manipulate a President’s policy decisions or to retaliate against a President for official acts through issuance of a subpoena would be an unconstitutional attempt to “influence” a su-perior sovereign “exempt” from such obstacles, see McCulloch v. Mary- land, 4 Wheat. 316, 417. And federal law allows a President to chal-lenge any such allegedly unconstitutional influence in a federal forum. Pp. 15–17. (2) A state grand jury subpoena seeking a President’s private pa-pers need not satisfy a heightened need standard, for three reasons. First, although a President cannot be treated as an “ordinary individ-ual” when executive communications are sought, Burr teaches that, with regard to private papers, a President stands in “nearly the same situation with any other individual.” 25 F. Cas., at 191–192. Second, there has been no showing here that heightened protection against state subpoenas is necessary for the Executive to fulfill his Article II functions. Finally, absent a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of compre-hensive access to evidence. Rejecting a heightened need standard does not leave Presidents without recourse. A President may avail himself of the same protec-tions available to every other citizen, including the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth. When the President

Cite as: 591 U. S. ____ (2020) 5 Syllabus invokes such protections, “[t]he high respect that is owed to the office of the Chief Executive . . . should inform the conduct of the entire pro-ceeding, including the timing and scope of discovery.” Clinton, 520 U. S., at 707. In addition, a President can raise subpoena-specific con-stitutional challenges in either a state or a federal forum. As noted above, he 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. Pp. 17–21. 941 F. 3d 631, affirmed and remanded. ROBERTS, C. J., delivered the opinion of the Court, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. KAVANAUGH, J., filed an opinion concurring in the judgment, in which GORSUCH, J., joined. THOMAS, J., and ALITO, J., filed dissenting opinions.


School Year 2020-21

School starts next week. We’ll be starting with “online” school which is planned to last about 6 weeks.  Then some kids apparently will be invited to attend in a physical school at least part of the time.

The role of the parents in these difficult times is to support kids and teachers in whatever way they can.  Last year the whole experience was difficult, and exasperating. But Robert thinks he did a good job at not going ballistic after it was clear that Rory was not able to keep up with the workload or even manage the expectations of the many many disparate and complex (and, he would say underbaked free) online learning platforms that were thrown into use.

Robert does  get frustrated. One major problem is that in the case of middle school, each child has 7 teachers.  Each of those teachers is asked to use an online learning platform to push out lesson content.  There is, of course, because of the way we are all (including the teachers most of all) trying our best to deal with all of this in a sane manner lots of confusion.  And learning how to do this stuff is like drinking from a firehose.

What is the problem, you ask?

Here’s one way Robert can start to explain it.

See the below screen, which is from the Google Classroom platform.  It is, of course, a page where the student can have a portal into each of his classes.  Each teacher creates “button” which the student can click to go further into that teacher’s materials, assignments, expectations, links to other platforms, chats, and other communications.

The image below shows three teachers, in the next couple days the other four teachers will add their “buttons.”

Screenshot_2020-08-21 ClassesThis portal page shows, in a very very small very tippy tippy top of the iceberg kind of way, how things devolve into confusion very quickly. You see, each teacher use his or her own different format to for his/her button.  One says “7 Science P2 DeMont”  the other says “Arroyo Per 3”  the last says “Per 4 Tervet Math 7”. Each one different and requiring time to figure out what each button is telling the user.  “7”.  What does that mean?  Oh, I guess it means 7th period.  Oh, no, it means grade 7 in this case.  It also says P2, which we guess means second period.  And DeMont, which we would guess is the teacher’s name.  Moving on, we see “Arroyo Per 3”.  Is there a class named “Arroyo?  There is no reference to grade level. Or the class subject.  The final one lists the period first, then the teacher’s name.  Then the subject and the grade level.  One supposes.

Now, of course, after looking at this portal page for about a minute, one can figure it out.  It is a trivial example, standing alone. But one must remember that this is the very very very top of the iceberg.  After entering into each teacher’s online “class” there are hundreds and hundreds of presentational and organizational choices each teacher needs to make in a huge multi-faceted decision tree.  And each one of them does everything a different way.  So, it is hundreds of decisions multiplied by 7, the number of teachers that each student has.  It takes hours and hours to work through the pages, locations of information, expectations, assignments, deadlines, etc. And it all changes week to week. And try to remember how each teacher does it his/her particular way.

Robert would say that this is the biggest difficulty.  The schools and teachers, totally understandably, have a very hard time grasping that, in the parlance of software platforms, this is a “few-to-many” environment.  Not “one-to-many” (as is elementary school) and not “many to many.”  The teachers and school need to pay way more attention to uniformity, standardization, continuity, and the fact that each kid is navigating a huge set of information.  Every time a child is asked to reference a separate document, or even make a click, uses up his or her energy and tolerance. Problems with presentation and volume multiply exponentially.

Last Days of Summer

Surfing safari to Laguna/Dana Point.

Sorry no vids of Rory.  He’s too pro to be nearshore.

Thanks Phillips!


NEJM: Covid Reading

  1. Reopening Primary Schools during the Pandemic  Muge Cevik, M.D., Marc Lipsitch, D.Phil, Meira Levinson, D.Phil.

    Paragraphs of note.

    For the past 6 months, policymakers and the U.S. public have weighed economic against public health considerations in debating what limits to set on individual and collective behaviors in attempting to control the Covid-19 pandemic. As fall approaches, attention has turned to a third pillar of a pandemic-resilient society: schools.1 Under ordinary circumstances, about 40 million children would be entering prekindergarten through 8th-grade classrooms this year, including nearly 27 million students in grades pre-K through 5.2,3 Until these children physically return to school full time, many will lose out on essential educational, social, and developmental benefits; neither the economy nor the health care system will be able to return to full strength given parents’ caretaking responsibilities4; and profound racial and socioeconomic injustices will be further exacerbated.5 We believe that safely reopening schools full-time for all elementary school children should therefore be a top national priority.

    . . . .

    Children miss out on essential academic and social–emotional learning, formative relationships with peers and adults, opportunities for play, and other developmental necessities when they are kept at home. Children living in poverty, children of color, English language learners, children with diagnosed disabilities, and young children face especially severe losses.

    . . .

    From a clinical standpoint, most children 1 to 18 years old experience mild or no illness from Covid-19 and are much less likely than adults to face severe consequences from the infection.18 Although a small number of children worldwide have been hospitalized with multisystem inflammatory syndrome in children (MIS-C) after SARS-CoV-2 infection, so far this appears to be a rare syndrome (affecting a reported 2 per 100,000 people under 21 years of age between March 1 and May 10, 202019), and with early recognition and treatment, clinical outcomes in the short term have been good.19-21 In contrast, adults, especially those who are over 60 or have underlying health conditions, are at higher risk for severe illness, hospitalization, and poor outcomes.18

    . . .

    But educators and other school personnel cannot necessarily dictate the place or terms of their employment, even (perhaps especially) when the social compact has broken down. It is tragic that the United States has chosen a path necessitating a trade-off between risks to educators and harms to students, given other countries’ success in reducing transmission and opening schools with routine control measures in place. This dilemma represents a social and policy failure, not a medical or scientific necessity.

    Nonetheless, we would argue that primary schools are essential — more like grocery stores, doctors’ offices, and food manufacturers than like retail establishments, movie theaters, and bars. Like all essential workers, teachers and other school personnel deserve substantial protections, as well as hazard pay. Remote working accommodations should be made if possible for staff members who are over 60 or have underlying health conditions.5,18 Adults who work in school buildings (or drive school buses) should be provided with PPE, and both students and staff should participate in routine pooled testing.30



Oregon 2020

The Pierces went to Oregon!

Klamath Falls – Bend/Sisters – Maupin – Hood River – Sweet Home – Medford

Rock Climbing – River Rafting – Five Minutes of Fishing – Twenty Hours of Spongebob