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The Supreme Court is set to hear oral arguments in a trio of cases Tuesday that will test the Trump Administration’s expansive view of presidential power and could determine whether voters will be able to see Donald Trump’s financial records before the November election.
President Trump has refused to release his tax returns since he hit the campaign trail five years ago, breaking with a decades-old tradition of financial transparency for presidents and presidential candidates. Now the Supreme Court is being asked to rule on two possible avenues for obtaining those records: congressional subpoenas and a grand jury subpoena from New York.
What the Supreme Court decides could have major ramifications for presidential power. In each case, Trump’s lawyers have made sweeping arguments about presidential immunity from congressional oversight and criminal investigation, a position critics say places a sitting president above the law. Trump has already been stymied six times in the three linked cases: in each case, a district court ruled against the president, and an appeals court affirmed that decision. Now the showdown is heading to the nation’s highest court, which enjoys a conservative majority sympathetic to strong claims of executive power but has already signaled a possible desire not to take a bold stance in these cases. What the Supreme Court decides could unleash or constrain presidential power for a generation, and more immediately for Trump, might result in the revelation of his closely-held tax returns and financial records in the middle of an election year that already has him slipping in key polls.
“It’s not just this Congress and this President,” Jessica Levinson, a professor at Loyola Law School, says of the stakes of the cases being argued Tuesday. “It’s every future Congress and every future president, and whether or not we want to create a system where executive power just continues to expand and expand and expand.”
The first two cases, which have been consolidated into one hour of oral argument, involve congressional subpoenas to third parties for Trump’s financial records. In Trump v. Mazars, the House Committee on Oversight and Reform issued a subpoena to Mazars, Trump’s accounting firm, for documents related to his businesses as part of an investigation into government ethics laws. Trump’s lawyers asked a federal district court to block the firm from releasing the records. In Trump v. Deutsche Bank, the House Committee on Financial Services and the House Permanent Select Committee on Intelligence, issued subpoenas to Deutsche Bank, Trump’s biggest lender, and Capital One for records related to the Trump family and the Trump Organization as part of an investigation into possible foreign influence in U.S. elections. In this case, too, Trump’s lawyers intervened.
In both cases, whether these subpoenas can be enforced largely rests on the idea of whether the House could use the information it seeks to craft legislation. The House says that according to Supreme Court precedent, the subpoenas need only have a “valid legislative purpose,” meaning they would result in “information that will inform Congress on a subject on which legislation could be had.” Trump’s lawyers, on the other hand, argue that the real motive behind the subpoenas isn’t legislative; rather, it is to see if Trump committed a crime. In the Mazars case, Trump’s lawyers wrote the Committee’s subpoena “is an unabashed effort to investigate whether the President violated federal law—a law-enforcement task that exceeds Congress’s legislative power.” The lawyers warn that allowing the subpoenas to be enforced “turns the constitutional line between a permissible legislative pursuit and an impermissible law-enforcement investigation into a magic-words test.” Trump’s lawyers also claim that the subpoenas are invalid, because they would have required the authorization of the full House, which the House disputes.
So far, district courts in Washington, D.C. and New York ruled against Trump in both cases, and those rulings were affirmed by appeals courts. “The committees’ interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a chief executive’s distraction arising from disclosure of documents reflecting his private financial transactions,” the United States Court of Appeals for the Second Circuit in New York wrote in the Deutsche Bank case.
The third case deals with a related but distinct issue. In Trump v. Vance, the subpoena in question was issued to Mazars for tax returns and other documents by the New York County District Attorney Cyrus Vance Jr. in the course of a grand-jury criminal investigation into Trump and his family business’s actions in arranging hush-money payments before the 2016 election to women who claimed they had affairs with Trump. (Trump denies the affairs and any wrongdoing related to the payments.) While the Mazars and Deutsche Bank cases center on separation of powers and congressional oversight issues, the Vance case raises other questions about the Supremacy Clause of the Constitution and whether sitting presidents can be involved in state criminal processes.
Trump’s lawyers have advanced an expansive view of presidential immunity in the Vance case. They argue that not only can a president not be indicted or tried while in office, but he or she also can’t be criminally investigated. Trump’s lawyer William Consovoy even argued before the United States Court of Appeals for the Second Circuit in October 2019 that if Trump shot someone, he still couldn’t be held accountable as long as he remains president.
The precedent on whether presidents can be subject to criminal prosecution— and whether that can occur in state courts— is complicated. There’s no clear answer on whether a sitting president can be prosecuted in a criminal case; the official view of the Executive Branch is that it cannot be done, but no court has ever definitively ruled on the issue. Trump’s lawyers also argue in Vance that with respect to state or local prosecution, the “risk that politics will lead state and local prosecutors to relentlessly harass the President is too great to tolerate.” The power difference between state and federal court arises in part from the Supremacy Clause of the Constitution, which establishes that federal law bars states from interfering in federal functions. In 1997’s Clinton v. Jones, the Supreme Court held that presidents can be sued while in office for private conduct, though that case concerned a civil lawsuit, not a criminal proceeding. And in the Clinton v. Jones ruling, the Supreme Court explicitly declined to wade into the question of whether states could prosecute the President.
Vance argues that Trump does not have categorical immunity “from providing evidence of private, potentially criminal acts that largely predate his presidency,” and further notes that the question in this case is merely about whether a president can be the subject of an investigation, not whether he can be indicted or prosecuted. And, as with the Mazars and Deutsche Bank cases, the Vance case involves a subpoena to a third party, not to Trump himself.
A federal district court in New York ruled against Trump and the Second Circuit largely affirmed the substance of the lower court’s decision, though it disagreed with some of the lower court’s reasoning. Trump’s lawyers’ broad immunity position is “repugnant to the nation’s governmental structure and constitutional values,” Judge Victor Marrero wrote in his decision in the Manhattan federal district court case.
What lower courts have held doesn’t necessarily indicate how the Supreme Court will rule, experts caution. “The Supreme Court will view this with a different perspective,” says Josh Blackman, an associate professor at the South Texas College of Law Houston. “It’s not just about Trump’s taxes, it’s also about what precedent you can set. Will future Congresses be able to sue the President whenever they disagree over subpoenas? Will states be able to investigate any federal official at any point? I think these are really difficult questions.”
Because of grand jury secrecy rules, even if the Supreme Court decides that Mazars needs to hand over Trump’s financial records to the grand jury in the Vance case, it’s unlikely that information would be made public any time soon. But that’s not the case with the House subpoenas. If the Supreme Court finds that Mazars and Deutsche Bank need to supply the records to Congress, they could become public before the election if House members decide to publicize the documents or hold hearings on their contents. “It’s hard for me to imagine the justices seeing this case without an awareness of its political ramifications,” says Michael Dorf, a professor at Cornell Law School.
Days before oral arguments, the Supreme Court justices raised a concern that could provide them an avenue to avoid ruling on the central questions posed in the three cases. On April 27, the justices asked lawyers in the cases to submit briefs asking whether the political question doctrine — the concept that some controversies should be resolved by the politically accountable branches of government rather than the courts — or “related justiciability principles bear on the adjudication of these cases.”
If the justices determine the political question doctrine applies to these cases, they could bypass a ruling on the core questions about congressional oversight, separation of powers and presidential immunity by determining that these disputes aren’t meant to be decided by judges at all. “It would be a dodge,” says Levinson. “It would be an enormous punt of the big question.”
Still, even if the justices decide that these cases present non-justiciable political questions, a host of other issues would then arise about whether the third parties would comply with the subpoenas and the mechanisms for enforcing them. If the banks and accounting firms insist on a court order for their cooperation, as they have already indicated, then it could be a win for Trump by default.
“Everything, including doing nothing, has potentially complicated consequences,” says Dorf.
Starting in May, the Supreme Court is hearing arguments over the telephone instead of in person and live-streaming the audio, a historic first for judicial body as it adjusts to conducting business during the coronavirus pandemic.