Supreme Court To Trump: You Are So Screwed, Eventually!
Finally, it's here! At long last, the Supreme Court has issued a ruling in the Trump tax cases. Chief Justice John Roberts, Kegstand, and Gorsuch joined the four liberal justices in two 7-2 decisions. Hooray! We must have won, right?
Well ... that depends.
If your definition of a "win" is preserving a legal system where the president is not above the law, then yes, we won. If you were hoping that before the election we'd get to see whatever it is that Trump has been fighting so hard to keep hidden, not so much. On the plus side, Trump's chances of retaining the White House look worse by the day, and the court just enshrined protections for a future President Biden (God willing!) against harassment by a future Republican Congress (God forbid!). And that's a really fucking good thing!
Evan already re-splained the cases to you this morning. But in a nutshell, Trump v. Vance answers the question "Can a sitting president be subpoenaed — really investigated at all — by a state prosecutor?" And in Trump v. Mazars, the issue is "Can a sitting president be subpoenaed by Congress?"
In Vance, the answer is an unequivocal "yes." Even Justices Thomas and Alito agreed that Jay Sekulow's maximalist howling about PRESIDENTIAL IMMUNITY was bullshit. In fact, they treated his entire appearance like a fart in church. When they say "The President claims," they mean that yammering dipshit Sekulow, and not in a good way.
The President next claims that the stigma of being subpoenaed will undermine his leadership at home and abroad. Notably, the Solicitor General does not endorse this argument, perhaps because we have twice denied absolute immunity claims by Presidents in cases involving allegations of serious misconduct.
Even via Zoom, his Fox-news style vamping was a gross violation of their hallowed chamber, and the court basically ignored him and concentrated on the quasi-rational arguments of Solicitor General Noel Francisco.
In their Vance dissents, Justice Thomas argues that presidents are far too busy to deal with state courts, even presidents who spend all goddamn day watching television and tweeting, and who have played golf 365 days already, while Justice Alito agrees with Francisco's argument that the president is a special snowflake who requires a balancing test to determine whether he should have to comply with state process. But in the majority opinion, Chief Justice Roberts notes that Presidents Jefferson, Monroe, Grant, Nixon, Carter, and Clinton all managed to produce documents or testify in judicial proceedings, and Commander Couch Potato can find time in his busy schedule to do it, too.
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.
Now the case will go back to the lower court where Trump will assert all the normal, not insane defenses to subpoena available to everyone else: It's overly broad, too burdensome, not related to the conduct under investigation, etc.
Presumably Trump's business records and tax returns are related to treating the hush money payment to Stormy Daniels as a business expense, so Trump will probably lose. But that might take a while, and anyway grand jury proceedings are secret. So maybe we'll get to see them eventually, and maybe we won't.
Considering what New York's Department of Financial Services just did to Deutsche Bank over its dealings with Jeffery Epstein, let's take a wildass guess that Manhattan DA Cyrus Vance isn't going to let the matter drop once Trump is out of office. But that's neither here nor there, because, hello we've got a whole 'nother case and serious constitutional issues to deal with here!
In Mazars, as in Vance, the Court refused to accept Trump's argument that he is absolutely immune from congressional subpoena of his personal documents. But here the majority agreed that there should be a balancing test because the president and Congress are both branches of government.
The approach proposed by the House, which relies on precedents that did not involve the President's papers, fails to take adequate account of the significant separation of powers issues raised by congressional subpoenas for the President's information. The House's approach would leave essentially no limits on the congressional power to subpoena the President's personal records. A limitless subpoena power could transform the established practice of the political branches and allow Congress to aggrandize itself at the President's expense. These separation of powers concerns are unmistakably implicated by the subpoenas here, which represent not a run-of-the-mill legislative effort but rather a clash between rival branches of government over records of intense political interest for all involved. The interbranch conflict does not vanish simply because the subpoenas seek personal papers or because the President sued in his personal capacity. Nor are separation of powers concerns less palpable because the subpoenas were issued to third parties.
If Congress wants to subpoena the president personally, then it must satisfy a four-part test demonstrating that:
- It is necessary to demand this information of the president herself because no "other sources could reasonably provide Congress the information it needs in light of its particular legislative objective";
- The subpoena is "no broader than reasonably necessary";
- The subpoena "advances a valid legislative purpose"; and
- That complying with the subpoena is not overly burdensome, "particularly because they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage."
In practical effect, this likely means that House Financial Services Chair Maxine Waters is not going to get her hands on 10 years of every Trump family member's financial documents based on a generalized legislative plan to "consider proposals to prevent the abuse of the financial system" and "address any vulnerabilities identified" in the real estate market. And you know what? THAT'S FINE. Because that subpoena is qualitatively different from HPSCI Chair Adam Schiff's demand to examine Trump's relationship with Deutsche Bank "as part of an investigation into foreign efforts to undermine the U.S. political process."
We can be partisan without being propagandistic. And we can acknowledge that Solicitor General Jeff Wall had a point when he argued that the logical extension of the House argument is that Congress would be entitled to subpoena the president's fifth grade report card if it claimed to be considering legislation to promote childhood literacy. That result simply can't be right.
More importantly, it is fundamentally unhealthy for our democracy when the government engages in politically motivated fishing expeditions — no matter whether it's Bill Barr holding the fishing rod, or Maxine Waters. Yes, Donald Trump and his family are a pack of crooks. Of course we should be able to see his tax returns. But getting back to a normal, healthy democracy with functioning guardrails is more important than bringing these assholes to justice.
And next year (God willing, again!), the shoe is going to be on the other foot. We Democrats have a pretty good shot at taking both the Senate and the White House. But if we don't, you know damn well that Lindsey Graham's first order of business is going to be subpoenas of every scrap of Hunter Biden's financial and medical records from the past 30 years. The Supreme Court could have dodged this bullet and said it was an injusticiable political question (i.e., outside the court's purview), but they didn't. They gave us a rubric which we will no doubt come to appreciate when we are inevitably on the other side of this litigation.
So, yeah, Donald Trump is going to be able to drag this out until after the election. We'll probably never get to see those tax returns. But we got laws to prevent a future Donald Trump pulling this same CONGRESS AIN'T MY DADDY shit and protection from congressional harassment for future Democratic presidents.
Take the win.
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Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.