Nixon/Trump: Strategies of Judicial Aggrandizement

27 Pages Posted: 19 Feb 2021 Last revised: 17 Apr 2021

See all articles by Josh Chafetz

Josh Chafetz

Georgetown University Law Center

Date Written: February 18, 2021

Abstract

In Trump v. Vance and Trump v. Mazars, the Supreme Court applied very different standards for subpoenas issued for the personal papers of the president, making it easier for a grand jury to acquire such materials than a congressional committee. The two opinions, both authored by Chief Justice Roberts, have been widely praised for suggesting that the president is not wholly above the law; indeed, they have been treated as the second coming of the Nixon Tapes Case.

This Essay argues that while the Trump subpoena cases do have an important kinship with the cases concerning access to White House tapes during Watergate, this similarity is not quite as flattering as commentators imagine. What the cases surrounding access to Donald Trump’s financial records and the cases surrounding access to Richard Nixon’s White House tapes have in common above all else is a project of judicial self-empowerment at Congress’s expense. What distinguishes them, on the other hand, is the immediate result of the two sets of cases: whereas the Nixon Court acted to push a lawless president out of office, the Trump Court acted to ensure that the information sought by other institutional actors could not have electoral consequences for another lawless president.

Keywords: separation of powers, Congress, president, oversight, subpoenas, grand jury, Trump, Vance, Mazars, Supreme Court

Suggested Citation

Chafetz, Josh, Nixon/Trump: Strategies of Judicial Aggrandizement (February 18, 2021). Georgetown Law Journal, Vol. 110, 2021, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3788366 or http://dx.doi.org/10.2139/ssrn.3788366

Josh Chafetz (Contact Author)

Georgetown University Law Center ( email )

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