The Supreme Court completed their term on Thursday morning by dropping a pair of 7-2 decisions, with Samuel Alito and Clarence Thomas dissenting in both cases. One is a clear loss for the president, and the other is more ambiguous but definitely not an outright win. However, the president has probably succeeded in keeping the public from seeing his financial records before they decide whether or not to reelect him.
The first case is TRUMP v. VANCE, DISTRICT ATTORNEY OF THE COUNTY OF NEW YORK, ET AL. The question was whether District Attorney Cyrus Vance and a Manhattan grand jury have the right to subpoena financial documents from a sitting president. Noting that Aaron Burr successfully demanded records from President Thomas Jefferson during his trial for treason, the Court held that Trump has to comply because “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.”
This case relates to Trump’s 2016 efforts through his then-attorney Michael Cohen to silence two women with whom he carried out extramarital sexual relationships.
Vance is investigating whether the Trump Organization falsified business records to conceal hush payments to two women, including pornographic film actress Stormy Daniels, who claimed they had sex with Trump before he took office. Trump has denied those claims.
However, what the SCOTUS technically did here was affirm a lower Court of Appeals ruling which remanded the case back to a District Court with instructions. So, before this subpoena can result in the production of Trump’s financial records, there is an additional loop that Vance must jump through, and even then grand jury materials are not public. In other words, the public will only see these records if they are produced during a trial, and a trial cannot happen until the District Court rules, the records are turned over, a grand jury decides to indict, and a trial is actually scheduled and commences. If Trump’s goal was to keep the public from ever knowing how much he is worth, he’s probably failed. If he hoped to hide his records from future criminal scrutiny, he failed. But he succeeded in keeping his records hidden through November. On the other hand, if he loses the election, he should expect to be on trial in Manhattan soon thereafter, and possibly for more than paying off his paramours.
The second case is TRUMP ET AL. v. MAZARS USA, LLP and it relates to Congress’s right to issue and enforce subpoenas to a sitting president. It also involves a request for Trump’s financial records, and the ruling has much the same political effect as the first. The court ruled by the same 7-2 majority that Congress can demand records from Trump, but it imposed a new four-part test to assure that the legislative branch doesn’t abuse the privilege.
The D. C. Circuit had upheld a lower district court ruling that Trump must comply with the congressional request for his tax records. The SCOTUS ruled that they hadn’t decided the case correctly: “The courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information.”
So, again, the case was not decided outright but sent back with instructions:
First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers. “‘[O]ccasion[s] for constitutional confrontation between the two branches’ should be avoided whenever possible.” Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 389–390 (quoting Nixon, 418 U. S., at 692). Congress may not rely on the President’s information if other sources could reasonably provide Congress the information it needs in light of its particular legislative objective. Second, 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.” Cheney, 542 U. S., at 387. Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose. The more detailed and substantial, the better. That is particularly true when Congress contemplates legislation that raises sensitive constitutional issues, such as legislation concerning the Presidency. Fourth, courts should assess the burdens imposed on the President by a subpoena, 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. Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list. Pp. 18–20.
Congress’s original subpoena requests may or may not meet the above four-part test. If not, they could craft new subpoenas carefully designed to pass muster. Either way, it seems extremely doubtful that Congress will get their hands on Trump’s taxes before Election Day.
The Court could perhaps be praised for sticking up for the important principle that a president is not above the law when making a decision that will influence the election. It’s important that the Supreme Court stay away from partisan politics as much as possible. But their decisions will influence the election precisely because the electorate won’t have the important information that it needs to make a decision.
I am not aware of anyone who thinks it would benefit Trump if the public saw his financial records. The assumption behind both of these suits and the rulings is that disclosure would hurt Trump. So, the president definitely got two wins if you look at it from that narrow perspective. His problem is that his legal vulnerabilities won’t go away after the election. Even if he wins, these rulings will eventually cause him political difficulties.
He also must be smarting that both Neil Gorsuch and Brett Kavanaugh, his two Supreme Court nominees, voted against him. I remember how he treated Attorney General Jeff Sessions when he thought he didn’t show sufficient loyalty, and now I suppose that he only has warm feelings for Clarence Thomas and Samuel Alito.
Those Justices were put on the court by the father and son Bush team, and the Bush family is pretty firmly (if informally) in Biden’s camp in this upcoming election. The same can be said for the people who served on John McCain’s campaign, many of whom are behind The Lincoln Project. And, of course, Mitt Romney voted to convict and remove Trump from office after his impeachment trial.
The roosters have not quite made it all the way home to roost, but they’re definitely on their way.