The issues are complex but go to the heart of the constitution’s separation of powers. This morning’s remote U.S. Supreme Court arguments in Trump v. Mazars and Trump v. Deutsche Bank et al. could finally lead to unraveling just what the acting president is so desperate to hide in his financial records. The arguments will be heard remotely (and broadcast live) via C-Span and NPR beginning at 10 a.m. EDT.
Not since the Nixon tapes case has a separation of powers issue of this significance reached the high court.
There are actually three cases to be heard this morning. Two involve whether the acting president’s agents must produce financial records and tax returns subpoenaed by Democrat-controlled House committees. The third, Mazars, could determine whether the state of New York will receive subpoenaed Trump tax records it seeks in its investigation of hush-money payments made to two women with whom Trump allegedly had affairs, writes CNN’s Elie Honig, a former federal and state prosecutor:
Legally, this shouldn’t be particularly close or difficult. Exhibit A: In total, six different federal courts — three district courts and three courts of appeals panels — have heard these cases, and all six have ruled against Trump. It’s no fluke that Trump has a batting average of exactly .000 thus far in trying to block disclosure of his tax returns, and it would take a stunning reversal by the Supreme Court — essentially deciding that all six lower courts got it wrong — to save Trump’s cause now.
The primary issue in the cases involving House subpoenas is whether Congress had some legitimate legislative purpose for requesting the tax returns. Courts traditionally interpret this requirement broadly in favor of Congress, sensibly deferring to the legislative branch to decide its own legislative purposes in all but the most egregious cases. In both cases involving House subpoenas, the district courts and courts of appeals ruled that the House was well within its authority to seek Trump’s financial information, which could inform various legitimate legislative purposes. The Supreme Court would have to twist itself into a legal pretzel — essentially substituting its own legislative preferences for those of Congress — to reach a contrary conclusion now.
The Supreme Court recently threw an unexpected twist into the proceedings when it requested additional briefings on whether the case presents a “political question unfit for judicial resolution.” This could signal that the court is looking for some off-ramp, some way to rule, in essence, that it cannot rule. However, federal courts — including all of the lower courts in the Trump tax returns cases — routinely rule on the enforceability of congressional subpoenas. It would be an unconscionable cop-out by the court to suddenly change this precedent, essentially rendering the Judicial Branch an ineffectual bystander to core constitutional disputes between Congress and the Executive Branch.
The court dodged ruling on the legality of partisan gerrymandering in 2019, claiming it was “beyond the reach of the federal courts,” so the Roberts court finding a way to avoid getting involved is not without precedent.
The argument in Mazars takes up the second hour of argument:
If Trump’s argument against the congressional subpoenas is weak, then his effort to block a prosecutorial subpoena from the Manhattan DA is downright monarchical. One district court judge rightly lambasted Trump’s argument that he is immune from even being investigated while in office as “repugnant to the nation’s governmental structure and constitutional values.” Indeed, Trump’s argument, if accepted, would place the President beyond almost any accountability, and would render law enforcement unable to even gather facts relating to potential crimes committed by the President while in office. Under Trump’s reading, if he in fact shot somebody on Fifth Avenue (to use his own hypothetical), the police could not even investigate the crime scene as long as he held the presidency.
Exposure of Trump’s New York tax records could expose Trump and his sister, retired federal judge Maryanne Trump Barry, to legal action. The New York Times in its 2018 exploration of Fred Trump’s taxes revealed apparent tax fraud. While the statute of limitations is past for Donald’s and Maryanne’s part in that, they could be subject to large civil penalties in New York. Maryanne’s retirement in the wake of that report quashed an ethics probe into her role.
Exposure of Deutsche Bank’s and his accountants’ records threatens to reveal to whom Trump has financial commitments and, potentially, that he is worth far less than he claimed in loan applications. Rumors that Trump owes what liquidity he has to Russian oligarchs and banned Russian banks, if confirmed by his taxes and bank and accountants’ records, could expose him to “a whirlwind of problems,” Forensic News suggests, including criminal charges when he leaves office. Trump has fought tooth and nail over any efforts to pry into his financial ties. He has something to hide.
Question his actions as acting president and Donald J. Trump grabs his phone to launch a string of mean tweets. Question the size and sources of his wealth and he uses it to call his lawyers (as this humble blog discovered last August).
Rulings in Trump’s favor could destroy the balance of powers and neuter congressional oversight of the sort of criminal actions that brought down Richard Nixon. No less than whether Trump and the “unitary executive” crew have managed to restore the monarchy is at stake.
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Note: The pandemic will upend standard field tactics in 2020. If enough promising “improvisations” come my way by June, perhaps I can issue a COVID-19 supplement.