There was good news and bad news for Donald Trump on Thursday in the president’s belabored efforts to keep his tax returns and other financial records out of the hands of the myriad interested parties looking to secure them.
The bad news is, the Supreme Court said a New York grand jury can access his financial records, in what Manhattan District Attorney Cyrus Vance called “a tremendous victory for our nation’s system of justice and its founding principle that no one – not even a president – is above the law”. Vance issued a subpoena in August in connection with a criminal probe.
That case took multiple turns for the absurd late last year, after Trump’s attorneys attempted to argue that he is immune from criminal investigations, a contention a federal judge in Manhattan called “repugnant to the nation’s governmental structure and constitutional values”.
That was on October 7. A couple of weeks later, the president’s lawyers pushed the envelope, asserting that Trump’s claim to immunity from prosecution would cover him even if he were to actually live out his famous claim that he could “stand in the middle of Fifth Avenue and shoot somebody”.
“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 local police would have if Trump literally 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?”, an incredulous Chin wondered.
“That is correct”, one of Trump’s attorneys actually responded. “That is correct”. (He said it twice.)
Subsequently, a three-judge panel of the New York-based 2nd US Circuit Court of Appeals ruled against the president, setting up a Supreme Court showdown, which Trump effectively lost on Thursday.
“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”, Chief Justice Roberts wrote, in one of two rulings. “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”.
So, no. Trump’s lawyers are officially not “correct” that he possesses absolute immunity from criminal investigation while in office. That much is settled. The subpoena issued to Mazars for financial records to be handed over to a grand jury as part of a criminal investigation is enforceable.
“The court’s decision in favor of the New York prosecutors was a major statement on the scope and limits of presidential power, one that will take its place with landmark rulings that required President Richard Nixon to turn over tapes of Oval Office conversations and forced President Bill Clinton to provide evidence in a sexual harassment suit”, The New York Times writes.
That’s comforting, although the very fact that the Supreme Court had to be consulted about the patently absurd notion that Trump can claim absolutely immunity, is disconcerting in the extreme.
Further, this isn’t over. “The arguments presented here and in the Court of Appeals were limited to absolute immunity and heightened need”, Roberts wrote. “The Court of Appeals, however, has directed that the case be returned to the District Court, where the President may raise further arguments as appropriate. We affirm the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion”.
The good news for Trump is that the House subpoenas seeking his financial records are blocked, at least for now, which means voters aren’t likely to see them prior to the election.
Roberts said a pair of appeals courts failed to “take adequate account” of separation of powers concerns, and the possibility that subpoenas issued by an opposing party may be used to secure the political upper-hand. To wit:
… courts should be careful to assess the burdens imposed on the President by a subpoena. We have held that burdens on the President’s time and attention stemming from judicial process and litigation, without more, generally do not cross constitutional lines. See Vance, ante, at 12–14; Clinton, 520 U. S., at 704–705. But burdens imposed by a congressional subpoena should be carefully scrutinized, for 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.
When Congress seeks information “needed for intelligent legislative action,” it “unquestionably” remains “the duty of all citizens to cooperate.” Watkins, 354 U. S., at 187 (emphasis added). Congressional subpoenas for information from the President, however, implicate special concerns regarding the separation of powers. The courts below did not take adequate account of those concerns. The judgments of the Courts of Appeals for the D. C. Circuit and the Second Circuit are vacated, and the cases are remanded for further proceedings consistent with this opinion.
Both rulings (embedded in full below) were 7-2. Thomas and Alito dissented. They would have tossed the House subpoenas altogether, apparently.
Gorsuch and Kavanaugh were in the majority in both cases, but didn’t adopt its reasoning.
Jay Sekulow predictably pitched the rulings as a win. “We are pleased that in the decisions issued today, the Supreme Court has temporarily blocked both Congress and New York prosecutors from obtaining the President’s tax records”, he declared, in a statement. “We will now proceed to raise additional constitutional and legal issues in the lower courts”.
“Our investigation, which was delayed for almost a year by this lawsuit, will resume, guided as always by the grand jury’s solemn obligation to follow the law and the facts, wherever they may lead”, Vance went on to say.
In all likelihood, records obtained in the state case will be away from the public eye thanks to grand jury rules, at least until after November, and quite possibly in perpetuity.
Sekulow’s client didn’t sound pleased. I’ll leave you with Chief Executive Trump, writing for a one-man minority:
The Supreme Court sends case back to Lower Court, arguments to continue. This is all a political prosecution. I won the Mueller Witch Hunt, and others, and now I have to keep fighting in a politically corrupt New York. Not fair to this Presidency or Administration!
We have a totally corrupt previous Administration, including a President and Vice President who spied on my campaign, AND GOT CAUGHT…and nothing happens to them. This crime was taking place even before my election, everyone knows it, and yet all are frozen stiff with fear…. …No Republican Senate Judiciary response, NO “JUSTICE”, NO FBI, NO NOTHING. Major horror show REPORTS on Comey & McCabe, guilty as hell, nothing happens. Catch Obama & Biden cold, nothing. A 3 year, $45,000,000 Mueller HOAX, failed – investigated everything……Won all against the Federal Government and the Democrats send everything to politically corrupt New York, which is falling apart with everyone leaving, to give it a second, third and fourth try. Now the Supreme Court gives a delay ruling that they would never have given…….for another President. This is about PROSECUTORIAL MISCONDUCT. We catch the other side SPYING on my campaign, the biggest political crime and scandal in U.S. history, and NOTHING HAPPENS. But despite this, I have done more than any President in history in first 3 1/2 years!