Donald Trump has officially asked the Supreme Court to decide whether Manhattan District Attorney Cyrus Vance Jr.’s efforts to get his hands on nearly a decade’s worth of financial records, including eight years of tax returns, should go forward.
The filing comes after a string of unsuccessful attempts to have the subpoena (which was issued to Trump’s accountant Mazars USA) blocked.
Earlier this month, a three-judge panel of the New York-based 2nd US Circuit Court of Appeals ruled against the president, again rejecting a flagrantly ridiculous claim of broad immunity not just from prosecution, but from investigation while in office.
Trump’s attorneys went so far as to argue that in a hypothetical case where the president made good on his campaign trail “joke” about “stand[ing] in the middle of Fifth Avenue and shoot[ing] somebody”, local authorities could not even look into the murder.
“Local authorities couldn’t investigate? They couldn’t do anything about it?”, Denny Chin, one of the three judges on the federal appeals panel which reviewed the case asked, inquiring as to what options police would have if Trump grabbed a rifle, ran out into the middle of the street and gunned down a half-dozen pedestrians for no reason. “Nothing could be done? That’s your position?”, Chin asked.
“That is correct”, Trump’s attorney actually said.
Now, the Supreme Court will get to decide if that is in fact “correct”, assuming they agree to review the matter, which they probably will considering Trump lost a similar case on Wednesday, when the US Court of Appeals for the District of Columbia Circuit declined to review a previous ruling against him in the House Oversight and Reform Committee’s bid to obtain financial records.
Manhattan prosecutors said they wouldn’t seek the returns until the case is resolved by the high court, on the condition SCOTUS decides whether to hear the case quickly, potentially setting the stage for a decision by next summer.
And so, here we are (this is from the petition, which is embedded in full below):
The District Attorney for the County of New York is conducting a criminal investigation that, by his own admission, targets the President of the United States for possible indictment and prosecution during his term in office. As part of that investigation, he served a grand-jury subpoena on a custodian of the President’s personal records, demanding production of nearly ten years’ worth of the President’s financial papers and his tax returns. That subpoena is the combination–almost a word-for-word copy–of two subpoenas issued by committees of Congress for these same papers. The Second Circuit rejected the President’s claim of immunity and ordered compliance with the subpoena.
The question presented is: Whether this subpoena violates Article II and the Supremacy Clause of the United States Constitution.
Needless to say, this sets up a potentially momentous separation-of-powers decision from a court which includes two Trump nominees, one of whom didn’t publicly proclaim his affinity for beer and hasn’t been accused of sexual harassment and assault by multiple women.
As the Washington Post writes, the DoJ did file a brief in support of the president as he fought to keep the records away from Vance, “but it did not endorse Trump’s assertion that he has absolute immunity from investigation”. Rather, the Justice Department “said there are some instances when a local prosecutor might legally seek a president’s documents – but this was not one of them”.
Perhaps the real question in all of this is what happens in the event Trump loses and simply refuses to comply by instructing Mazars, Treasury and the IRS to tell Vance (and Congress) to pound sand.
Somehow, that doesn’t seem wholly far-fetched anymore.
Some background to ponder going forward: Article l of the Constitution is superior to Article ll, hence trump is subservient to Congress and he can’t invent new law to protect himself — and hence, the DOJ and SCOTUS should not play a ole in interpreting laws made by the legislature. James Maison based the structure of the Articles in a specific order, based on John Locke thinking that the legislative body is of greater importance than a single executive. In addition, worth noting a few things from the Nixon Frost interview, in terms of obstruction:
“But Frost replies that Nixon knew that criminals would be protected. Nixon objects and tries to qualify, but Frost persists: “An obstruction of justice is an obstruction of justice if it’s for a minute or five minutes…” On the televised portion of the interviews at this point, Nixon appears shaken. He then says his “absence of motive” precludes any criminal intent. But Frost jumps on that and surprises Nixon, suggesting the ex-president’s knowledge of the law is incomplete. “The law states,” says Frost, “that when intent and foreseeable consequences are sufficient, motive is completely irrelevant.” Nixon says nothing and appears uncomfortable.”
Re: Whether this subpoena violates Article II and the Supremacy Clause of the United States Constitution
I ran across the following and post it just as background as to why Article ll “powers” are limited– and as for the Supremacy Clause, that also IMHO, is subservient to Article l. The final wall of text brings up a very old debate, but suggests that trump is hiding behind his private agenda, versus Constitutional rights granted to any citizen. What’s most interesting in this trump charade is how the GOP is so willing to shoot itself in the foot and side with a crook, versus their willingness to walk away from their oaths to protect the Constitution. I still don’t understand that motivation to worship trump, the game show host, versus defend and protect the Constitution.
The Founding Fathers did not write the Constitution without careful reference to the prior scholarship of
Great Men, and without reference to the history of all prior republican forms of government.
James Madison of Virginia, in particular, drawing heavily upon materials sent to him from Paris by
Thomas Jefferson, made certain that the Constitution evolved from the past experience of all the
republics that had failed, and would not be written out (as would later be the case with the
disastrous French constitution) as an act of constructivist rationalism
John Locke’s seminal book, Two Treatises of Government — the book that provided the intellectual
justification for England’s Glorious Revolution of 1689 — provides the rationale for placing the
legislative branch of government at the very beginning of the Constitution:
The Founding Fathers wisely embraced Locke’s argument establishing the legislature as the central
pivot of any social contract through which individuals would consent to place their lives, liberties
and properties under the protection of a civil or political society.
It is no accident that Article I of the United States Constitution deals first with the legislature.
Although commentators frequently describe the three branches of government as ‘separate but equal’, the Constitution is silent on that issue. Although the Founders designed the three branches to be interconnected, each branch checking the power of the others, they surely relied on Locke’s Second Treatise in recognizing
the legislative branch as the fulcrum of the social contract.
The Establishment of Judicial Review
First, Marshall recognized certain fundamental principles. The people had come together to establish a government. They provided for its organization and assigned to its various departments their powers and established certain limits not to be transgressed by those departments. The limits were expressed in a written constitution, which would serve no purpose “if these limits may, at any time, be passed by those intended to be restrained.” Because the Constitution is “a superior paramount law, unchangeable by ordinary means, . . . a legislative act contrary to the constitution is not law.”741 “If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?” The answer, thought the Chief Justice, was obvious. “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.
Furthermore, it was contended that cases did not “arise” under the Constitution unless they were brought in the first instance by someone (like trump) claiming such a right, from which it followed that “the judicial power of the United States” did not “extend” to such cases unless they were brought in the first instance in the courts of the United States. But Chief Justice Marshall rejected this narrow interpretation: “A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends upon the construction of either.”757 Passing on to the power of the Supreme Court to review such decisions of the state courts, he said: “Let the nature and objects of our Union be considered: let the great fundamental principles on which the fabric stands, be examined: and we think, the result must be, that there is nothing so extravagantly absurd, in giving to the Court of the nation the power of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction.
https://www.law.cornell.edu/constitution-conan/article-3/section-2/clause-1/the-establishment-of-judicial-review
Whew …