July 10, 2020

Trump’s Tax Returns

On Thursday, “the Supreme Court issued its long-awaited rulings in the battle over efforts to obtain financial records belonging to President Donald Trump. By a vote of 7-2, the justices sent a pair of cases challenging congressional subpoenas for the records back to the lower courts for another look, holding that subpoenas involving the president must be subject to a tougher standard than the courts had applied. In a third case, in which the president challenged a subpoena by a Manhattan district attorney, the justices – again by a vote of 7-2 – rejected the president’s claim that he is always immune from state grand jury proceedings while he is in office… The court sent the case back to the trial court and agreed that the president could still argue that complying with this subpoena would interfere with his ability to do his job.” SCOTUSblog

See past issues

From the Left

The left is generally supportive of the decisions but dismayed that Trump may be able to delay releasing documents until after the election.

Trump is the most financially conflicted president of the modern era, and his tenure has shown the inadequacy of voluntary disclosure. He hasn’t released his tax returns, and the trust controlling his business interests, overseen by his two eldest sons and his longtime accountant, is anything but blind. Litigants typically don’t withhold information that speaks well of themselves so it’s natural to wonder about what it is in Trump’s financial records that he has been so determined to hide…

“In the meantime, the Supreme Court has removed Team Trump’s ability to argue that the president resides atop Olympus, untouched by the rules that govern the rest of us.”
Timothy L. O’Brien, Bloomberg

“When Congress subpoenas the President, the Court found, issues relating to the separation of powers come into play in a way that they don’t when a President is asked to give evidence in a criminal proceeding. The middle way the Court offered was a four-step test: Did the legislative purpose really warrant a subpoena? Was the demand for documents broader than it had to be? Did courts think that there was good evidence establishing that the purpose Congress claimed was, indeed, its purpose? And how much of a burden did it place on the President?…

“This obviously makes for a longer path toward revealing Trump’s financial entanglements than if the Court had simply ordered the President to open his files today. But… The rulings were a reminder that this country still has laws.”
Amy Davidson Sorkin, New Yorker

Others argue that “[The Intelligence Committee's investigation] concerns nothing less than whether foreign actors have financial leverage over the president. That raises the possibility of truly monumental, and potentially treasonous, acts on the part of the man residing in the White House and seeking re-election. That the chief justice of the Supreme Court is content to let even this investigation languish in lower courts as the president raises objection after objection to allowing Congress to proceed with its work is a remarkable statement of the court's deference to the presidency, regardless of the character and actions of the man who holds the office…

“Don't be fooled by the sweeping principles annunciated on Thursday… Roberts and several of his colleagues are content to wash their hands of the potentially very dirty details on the presumption that presidents in general should be given the benefit of just about every doubt.”
Damon Linker, The Week

“From the day he took office, Mr. Trump has governed as though democratic checks and balances are optional. ‘I can do whatever I want,’ he has said, more than once. This includes intervening in federal prosecutions to protect his friends, soliciting foreign interference in American elections and tear-gassing peaceful protesters for a photo op…

“Whether he was breaking fair-housing laws and cheating on taxes as a real estate developer, or interfering with federal investigations into his own abuses of power as an elected official, Mr. Trump has always staked his survival on the fact that the wheels of justice grind slowly…

“The court’s rulings hold the line, at least — ensuring that presidents cannot simply disregard congressional oversight or criminal investigation. But the fact that it took nearly a full term in office for the courts to articulate such a fundamental constitutional truth, and that still Congress and the American people will be left wondering, is damning evidence that justice delayed is justice denied.”
Editorial Board, New York Times

“The slow pace of judicial action to vindicate legitimate congressional subpoenas, which will not be helped by these decisions, serves the interests of a president like Trump who consistently seeks to expand his power and get away with ever more misconduct by testing which laws and norms are truly enforceable. That is why one of the bipartisan reforms the American people must demand is a faster process for resolving legal disputes between Congress and the executive branch. In the post-Trump era, we need our courts not merely to say what the law is — but also to do so quickly. Ultimately, the scale of reform and accountability our country desperately needs is much bigger than a victory in a Supreme Court case or two, even consequential ones like these.”
Noah Bookbinder, USA Today

From the Right

The right is generally supportive of the decisions but worries that Vance will erode the power of the Presidency.

The right is generally supportive of the decisions but worries that Vance will erode the power of the Presidency.

“Departing from the practice (universal, I think) of modern presidential candidates, Donald Trump refused to make public his tax records. Not good. Trump’s political enemies contrived to use congressional and prosecutorial authority to force the disclosure of Trump’s financial records. Not good...

“Both sets of enemies went to town. They subpoenaed not just President Trump’s records but also those of Donald Trump Jr., Eric Trump, and Ivanka Trump. Not good. In judicial proceedings challenging various subpoenas, lawyers asserted that the president has absolute immunity from state criminal proceedings. Not good…

“This collection of bad behavior landed at the Supreme Court. Today, the Court untangled some of it. My takeaway is that the Court upheld the rule of law, but denied Trump’s enemies the political victory they craved. And the Court accomplished this without dividing 5-4.”
Paul Mirengoff, Power Line Blog

“Many partisans have never grasped that wanting to see the returns was one thing, but having the legal right to obtain them was quite another. Absent a law mandating that a candidate produce them, one can only obtain them pursuant to a valid investigation for which they are relevant evidence. That was the question the two cases presented to the court…

“This ruling will surely disappoint anti-Trump partisans, but courts ought not to become the hit men in a political hatchet job. The 7-to-2 majority, which included all four of the court’s Democrats, clearly saw what they were being asked to do and declined. All who sincerely desire the rule of law should be glad they did.”
Henry Olsen, Washington Post

“Forget about Mr. Trump. The real import of the rulings is that the Supreme Court has weakened the Presidency by opening the gates to harassment by Congress and especially local prosecutors… Congress now has an invitation to seek a President’s personal records as long as it builds a remotely plausible legislative purpose and without the political accountability of an impeachment proceeding…

“[And] As Justice Alito notes, the Court has recognized ‘a President is ‘an easily identifiable target’’ and ‘there are more than 2,300 local prosecutors and district attorneys in the country. Many local prosecutors are elected, and many prosecutors have ambitions for higher elected office.’ The Chief says judges will police local prosecutors, but this is optimism approaching political naiveté…

“Mr. Trump won’t occupy the Oval Office forever, maybe not past January. Rest assured that Republican partisans will interpret the Court’s rulings on Thursday as a license to harass a Democratic President as long as they put forward a plausible legal cover. Joe and Hunter Biden had better prepare for the subpoenas of their personal and business records.”
Editorial Board, Wall Street Journal

“In 1974, the Court had enforced a subpoena against President Richard Nixon for the Watergate tapes. In 1997, the Court held that Paula Jones could pursue her federal civil lawsuit against President Bill Clinton for sexual harassment that occurred before he took office. But then the Court went awry.  Unlike these earlier cases, today’s case involved a probe launched by a state official…

“The President cannot remove or delay state investigations, as he can with federal prosecutors. Vance undermines the Supremacy Clause, which prohibits state governments from standing in the way of the federal government’s performance of its duties… Vance virtually adds 2,300 state prosecutors as a fourth branch of government. They will have a powerful ability to interfere with a president’s ability to carry out his constitutional functions… Imagine what will happen in a Trump second term.”
John Yoo, Fox News

“As a practical matter, although these cases go down as legal losses for the presidency, the Court’s remand back to lower courts ensures that the wrangling will go on for months — until long after Election Day. That’s a big political win for the president… President Trump’s personal financial information is not going to be an issue in the 2020 campaign. In fact, it will probably be even less of an issue than it was in the 2016 campaign, since the president can now say that the Supreme Court recognized the dangers of interference in his daunting duties.”
Andrew C. McCarthy, National Review

A libertarian's take

“I doubt there is anything in the relevant records that would affect the November election, as I doubt they contain anything that would dissuade anyone voting for Trump who is otherwise inclined to support his reelection… But these cases may matter in a different way. By rendering 7-2 judgments in these two cases, and eschewing the partisan divisions that we see throughout our other institutions, the Court has demonstrated an ability to reach careful, balanced judgments on important separation of powers questions with deep political significance.”
Jonathan H. Adler, Volokh Conspiracy

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