Case BriefsForeign Courts

US SC: In a high-profile set of rulings, the US Supreme Court has, in a 7:2 verdict, held that the t President Trump is not immune from criminal investigation and he must release his financial records so that they can be examined by prosecutors in New York. He, however, does not have to share this information with Congress.

Background of the case

The cases relate issuance of subpoena to produce financial records relating to President Trump and business organizations affiliated with him, including tax returns and related schedules, from 2011 to the present. President Trump, however, argued that under Article II and the Supremacy Clause, a sitting President enjoys absolute immunity from state criminal process. He asked the court to issue a declaratory judgment that the subpoena is invalid and unenforceable while the President is in office and to permanently enjoin the district attorney from taking any action to enforce the subpoena.

Majority Opinion on New York prosecutors’ demand for President Trump’s documents

“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.”

Refusing to conclude that absolute immunity is necessary or appropriate under Article II or the Supremacy Clause, the majority opinion stated that such a heightened standard would extend protection designed for official documents to the President’s private papers. The President retains the right to assert privilege over documents that, while ostensibly private, “partake of the character of an official paper.”

The majority was also of the opinion that in the absence of a need to protect the Executive, the public interest in fair and effective law enforcement cuts in favor of comprehensive access to evidence. Requiring a state grand jury to meet a heightened standard of need would hobble the grand jury’s ability to acquire “all information that might possibly bear on its investigation.

It further stated that even assuming the evidence withheld under that standard were preserved until the conclusion of a President’s term, in the interim the State would be deprived of investigative leads that the evidence might yield, allowing memories to fade and documents to disappear. This could frustrate the identification, investigation, and indictment of third parties (for whom applicable statutes of limitations might lapse). More troubling, it could prejudice the innocent by depriving the grand jury of exculpatory evidence.

The Court, however, clarified that rejecting a heightened need standard will not leave Presidents with “no real protection.”

Following remedies will be available to the President:

  • the right to challenge the subpoena on any grounds permitted by state law, which usually include bad faith and undue burden or breadth
  • President can raise subpoena-specific constitutional challenges, in either a state or federal forum. He can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause
  • the Executive can—as the district attorney concedes—argue that compliance with a particular subpoena would impede his constitutional duties.

Majority Opinion on congressional demands for President Trump’s documents

“Congressional demands for the President’s information present an interbranch conflict no matter where the information is held—it is, after all, the President’s information.”

The majority opinion of the Court stated that the interbranch conflict here does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity. The President is the only person who alone composes a branch of government. As a result, there is not always a clear line between his personal and official affairs. “The interest of the man” is often “connected with the constitutional rights of the place.”

The Court further stated that

“a subpoena for personal papers may pose a heightened risk of such impermissible purposes, precisely because of the documents’ personal nature and their less evident connection to a legislative task.”

The majority was, hence, of the opinion that in assessing whether a subpoena directed at the President’s personal information is “related to, and in furtherance of, a legitimate task of the Congress,” courts must perform a careful analysis that takes 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.

The Court took note of the following considerations to reach to the aforementioned conclusion:

  • The President’s unique constitutional position means that Congress may not look to him as a “case study” for general legislation.
  • Unlike in criminal proceedings, where the very integrity of the judicial system would be undermined without full disclosure of all the facts , efforts to craft legislation involve predictive policy judgments that are not hampered in quite the same way when every scrap of potentially relevant evidence is not available.
  • To narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective. The specificity of the subpoena’s request “serves as an important safeguard against unnecessary intrusion into the operation of the Office of the President.”
  • Courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. It is “impossible” to conclude that a subpoena is designed to advance a valid legislative purpose unless Congress adequately identifies its aims and explains why the President’s information will advance its consideration of the possible legislation.
  • Burdens imposed by a congressional subpoena should be carefully scrutinized, for they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage.

[Trump v. Vance, No. 19–635 and Trump v. Mazars USA LLP, No. 19–715, 2020 SCC OnLine US SC 3, decided on 09.07.2020]

Case BriefsForeign Courts

United States District Court, Columbia: Royce C. Lamberth, J., held that, a mandated pre-publication review process is not an unconstitutional prior restraint.

Bolton has gambled with national security of USA.

Background

John Bolton in the year 2018 had accepted the role as a National Security Advisor and was responsible for directing and supervising the work of National Security Council staff on behalf of the president.

Further in the Year 2019, when he left his post he secured a book deal with publisher Simon and Schuster.

Bolton had accepted the certain conditions in his employment and executed multiple non-disclosure agreements with the government.

In one agreement, Bolton agreed that he would “never divulge classified information to anyone unless: (a) he has officially verified that the recipient has been properly authorized by the United States Government to receive it; or (b) he has been given prior written notice of authorization from the United States Government . . . that such disclosure is permitted.”

In the event Bolton was “uncertain about the classification status of information, [he was] required to confirm from an authorized official that the information is unclassified before he may disclose it.

Violation of the above could result in assigning to the US Government all royalties, remunerations and emoluments.

On June 8, 2020, John Eisenberg, Deputy White House Counsel and Legal Advisor to the NSC, issued a letter to Bolton that claimed the manuscript of the book contained classified information. By that point, Bolton had already delivered a final manuscript to his publisher for printing and shipping, without written authorization and without notice to the government.

What is the government asking this Court to do about the above-stated issue?

Government seeks a Temporary Restraining Order or Preliminary Injunction that would:

  1. Enjoin Bolton from “proceeding with the publication of his book in any form or media without first obtaining written authorization from the United States through the prepublication review process;”
  2. Require Bolton to “ensure that his publisher and resellers receive notice that the book contains classified information that he was not authorized to disclose;”
  3. Require Bolton to “instruct his publisher to delay the release date of the book pending the completion of the prepublication review process and authorization from the United States that no classified information remains in the book;”
  4. Require Bolton to “instruct his publisher to take any and all available steps to retrieve and destroy any copies of the book that may be in the possession of any third party;”
  5. Enjoin Bolton from “taking any additional steps towards publicly disclosing classified information without first obtaining authorization from the United States through the prepublication review process;” and
  6. Require Bolton to “ensure that his publisher and resellers receive notice of the injunction.”

Bolton was the National Security Advisor to the President. He was entrusted with countless national secrets and privy to countless sensitive dealings.

To Bolton, this is a selling point: His book is entitled The Room Where It Happened.

He rushed to write an account of his behind-closed-doors experiences and produced over 500 pages of manuscript for review. Not four months later, Bolton pulled the plug on the process and sent the still-under-review manuscript to the publisher for printing.

Many Americans are unable to renew their passports within 4 months,  but Bolton complains that reviewing hundreds of pages of a National Security Advisor’s tell-all deserves a swifter timetable.

Access to sensitive intelligence is rarely consolidated in individuals, and it comes as no surprise to the Court that the government requested several iterations of review headed by multiple officers. But what is reasonable to the Court was intolerable to Bolton, and he proceeded to publication without so much as an email notifying the government.

Court further added that the NDA’s signed by Bolton barred publication of classified material but he likely published materials.

Government also argued that an injunction would atleast prevent any further spread of the book, such as limiting its audiobook release.

But for the said argument, Court stated that it is unavailing, Bolton has without securing final approval from national intelligence authorities published his book and may indeed have caused irreparable harm to the country.

With hundreds of thousands of copies around the globe—many in newsrooms—the damage is done. There is no restoring the status quo.

Hence, Court while concluding and denying the motion held that,

“.. Bolton has gambled with the national security of the United State and has exposed his country to harm and himself to civil and potentially criminal liability. “

The above facts do not control the motion before the Court and government has failed to establish that an injunction will prevent irreparable harm. [ U.S.A v. John R. Bolton, Case No. 1:20-cv-1580(RCL), decided on 20-06-2020]

Hot Off The PressNews

As reported by media,

Violation of Free Speech Law | Donald Trump, the U.S. President cannot block critics from his twitter account as the 2nd US Circuit Court of Appeals in Manhattan stated the following:

“The First Amendment does not permit a public official who utilises a social media account for all manner of official purposes to exclude persons from an otherwise – open online dialogue because they expressed views with which the official disagrees.”

The above ruling case from the case on behalf of seven individuals who had been blocked by the president.

It has been alleged that the said Act by President Trump is in violation of the Constitution.

The Appeals Court upheld a lower court ruling in the case of Knight First Amendment Institute v. Trump that the President’s Twitter account constituted a “public forum.”

Background

The Knight First Amendment Institute at New York’s Columbia University filed a lawsuit in July 2017 against the President on behalf of seven Twitter users, alleging that he did not have the right to block individuals who posted critical comments in response to his tweets.


[Source: BBC]

[Image Credits: BBC]

Case BriefsForeign Courts

United States District Court, Western District of Washington at Seattle: In sight of the continuous protests against travel ban on certain Muslim countries in USA, the State of Washington filed a complaint seeking declaratory and injunctive relief against Federal Defendants- Donald J. Trump, in his official capacity as President of the U.S.A, the United States Department of Homeland Security – John F. Kelly, Secretary of DHS, Tom Shannon, as Acting Secretary of State, and the United States of America.

Issue before the Court:-

The Executive order was issued on 27.01.2017 and the State sought declaratory relief invalidating portions of the order. The State prayed for the grant of TEMPORARY RELIEF ORDER (TRO) against Federal Defendants. Presently, the purpose of a TRO was to preserve the status quo before the court would hold a hearing on a motion for preliminary injunction. The Court observed that the standard for issuing a TRO is the same as the standard for issuing a preliminary injunction and that a TRO is “an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief” while citing Winter v. Natural Resources Defendant Council, Inc., 2005 SCC OnLine US SC 62 : 545 US 596 (2005) in which the test for granting a preliminary injunctive relief was laid down by U.S. Supreme Court, popularly known as Winter Test.

What is Winter Test?

This test lays down the proper legal standard for granting preliminary injunctive relief. As per the test, a party who seeks it, requires to demonstrate the following:-

(1) ‘that he is likely to succeed on the merits,

(2) that he is likely to suffer irreparable harm in the absence of preliminary relief,

(3) that the balance of equities tips in his favor, and

(4) that an injunction is in the public interest.’

Satisfaction of test in this case:-

The court found that the States could satisfy the abovementioned standards and the winter test. The court observed that the petitioners had shown that they were likely to succeed on the merits of the claims that would entitle them to relief; and they were likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities also favoured the States; and a TRO was definitely in the public interest. The irreparable harm is in the sense that the Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel.

These harms would extend to States by virtue of their roles as parens patriae of the residents living within their borders, the Court observed. Parens patriae, in law refers to the to the public policy power of the state to involve oneself with someone who has an abusive or negligent parent, legal guardian or informal caretaker, and can act as the parent of any child or individual who is in need of protection. Also, in US litigation, State can resort to this policy to create its stand to sue on behalf of its people and had successfully proved in this case that its people were being injured due to the implementation of the impugned executive order.

Not even this, but the State itself would be harmed by implementation of the executive order as it inflicts upon the operations of the public Universities in States and other institutions as well as injury to the States’ operations, tax bases, public funds, etc. such harms are significant capable of causing irreparable injury to States, the Court considered carefully.

Conclusion:

The Court concluded that a TRO against Federal Defendants was necessary until such time as the court could hear and decide the States’ request for a preliminary injunction. It enumerated a few provisions of the Order against which the TRO was applicable and held that the temporary restraint on the ban on travel by certain countries would be effective nationwide until it hears the parties finally for preliminary injunction. [State of Washington and Minnesota v. President, U.S., Case No. C17-0141JLR,  order dated 03.02.2017 ]