Why The Supreme Court’s Tax Rulings Are Bigger Than Trump

Donald Trump stands with his kids before he speaks at a press conference at Trump Tower on January 11, 2017 in New York City (AP) and the U.S. Supreme Court Building in Washington. Jan. 25, 2012 (AP Photo/J. Scott Applewhite, File).

After more than three years of Trump declaring his power absolute, and with Attorney General William Barr attempting to make it so for the last year, Trump’s own Supreme Court appointees agree there are limits. In a huge victory for democracy, the Supreme Court of the United States (SCOTUS) ruled that a president is not immune from complying with a subpoena in a state criminal investigation. The 7-2 decision in Trump v. Vance, District Attorney of the County Of New York, et al., written by Chief Justice John Roberts, with Justices Thomas and Alito dissenting, reaffirms that no one, not even Trump, is above the law.

While the second SCOTUS opinion on Trump’s taxes released on July 9, 2020, Trump et al. v. Mazars Usa, LLP, et al., decided with the same 7-2 margin, is also no slam-dunk for Trump, the case’s full impact will hinge on the Separation of Powers issue raised by the Court. In this second case, the lower circuit’s rulings were vacated and the case remanded for further proceedings. As the Court notes, while affirming Congress’s power to subpoena the president, this case raises power issues never before brought to SCOTUS.

In another era, perhaps, Vance and Mazars would have been expected, dismissed and overlooked as dry and procedural, court watchers looking over these cases’ metaphorical shoulders for something more interesting. But as even Mazars alludes, times are different. These decisions take the spring out of anticipatory murmurings wondering whether SCOTUS had become a partisan kangaroo court under Trump, especially with Justices Kavanaugh and Gorsuch siding with the majority.

These rulings crush Trump’s notion of “absolute immunity,” the same argument Trump’s lawyers used against the Obstruction of Congress article in his impeachment trial. Trump’s handpicked Justices helped deal the blow.

Donald Trump was not pleased.

Courts in the past have given “broad deference”. BUT NOT ME!

— Donald J. Trump (@realDonaldTrump) July 9, 2020

As former Acting Solicitor General in the Obama administration, Neal Katyal, puts it:

My full views on just how much Trump lost today at the Supreme Court today, in under 3 mins! So much winning. pic.twitter.com/czClNJkWQ4

— Neal Katyal (@neal_katyal) July 9, 2020

Trump v. Vance

Putting an end to Trump’s claims the presidency confers some kind of “absolute immunity,” SCOTUS invoked Justice John Marshall: “[T]he propriety of introducing any papers…depend on the character of the paper, not the character of the person who holds it.”

Background

After opening a criminal case investigating Donald Trump in 2019, New York County District Attorney Cy Vance subpoenaed Trump’s accounting firm, Mazars USA LLP for Trump’s financial records in his probe into Donald Trump’s hush-money payments. Trump claimed as the sitting president, he had presidential immunity from complying with the subpoenas and filed for an injunction preventing its enforcement. The lower court dismissed his claim, declining to assert jurisdiction. While the Second Circuit rejected the district court’s reason for dismissal, it affirmed the denial of the injunction, holding:

“presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce nonprivileged material, even when the subject matter under investigation pertains to the President.”

The Second Circuit also rejected the argument that Executive Privilege somehow applied to Trump’s private papers. On July 9, 2020, the Supreme Court affirmed the Second Circuit and remanded the case for further proceedings.

SCOTUS Ruling

“The Constitution does not entitle the president to absolute immunity or a heightened standard.”

The Court, invoking Alexander Hamilton and Aaron Burr for the second time in a week, and perhaps supplying fodder for a “Hamilton” sequel, pointed out this issue of immunity dates all the way back to Thomas Jefferson, when Aaron Burr sought to enforce a subpoena against Jefferson as Burr stood trial for treason. Marshall ruled, as per the decision in Vance:

“At common law the ‘single reservation’ to the duty to testify in response to a subpoena was ‘the case of the king, whose ‘dignity’ was seen as ‘incompatible’ with appearing ‘under the process of the court.’ But, as Marshall explained, a king is born to power and can ‘do no wrong.’ The President, by contrast, is ‘of the people’ and subject to the law.” [citations omitted]

The Court rejected Trump’s arguments in favor of an absolute immunity, which he argues he requires due to three burdens: diversion, stigma, and harassment. The Court’s take on these issues:

• Diversion: If a criminal subpoena is properly tailored, it will not cause diversion.
• Stigma: the secret nature of grand juries eliminates this issue.
• Harassment: limits on the powers of grand juries and federal oversight already prevent this issue.

Says SCOTUS:

“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. 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. The “guard[] furnished to this high officer” lies where it always has—in “the conduct of a court” applying established legal and constitutional principles to individual subpoenas in a manner that preserves both the independence of the Executive and the integrity of the criminal justice system.”

What Happens Next In Vance

SCOTUS ruled only on whether Trump is immune from complying with a criminal subpoena, it did not rule on any other issues relating to the subpoena itself, such as the scope of the subpoena or the specific documents sought by Vance. The case now goes back to the district court, where Trump has the option to raise these issues.

In the same way that this opinion holds that no one, not even the president, is above the law, it also affirms his rights as a citizen: Trump still has the same options as any other party before the court when it comes to challenging requests for documents. It is possible the case will extend beyond the election, but that’s not by design of the Justices as help to Trump. It’s a feature of the same system SCOTUS just protected with this ruling. Trump is not immune to the law; he is also entitled to its protections.

When Vance does get hold of Trump’s tax returns, there’s no telling what he might find, given Trump’s history of alleged fraudulent behavior. The New York Times exposed potential tax fraud and Trump’s former fixer Michael Cohen accused Trump of inflating assets to insurance companies and banks.

Why Vance Matters

Trump famously said he could do “anything I want” as president.

Over the course of his presidency, Trump has positioned himself, with Barr’s help, like a king, and the Supreme Court did not mince words in telling him he is not one. This precedent-setting ruling served a huge blow to the conservative unitary executive theory, which Barr has long espoused.

This ruling shows that the Court is not nodding along to an unending expansion of Trump’s powers, and as much control as we might assume he has over Justices Kavanaugh and Gorsuch, the Justices have other ideas.

Attorney Renato Mariotti weighed in:

7/ The bottom line from this first decision is that Trump is not above the law and, aside from a specific challenge to a subpoena that is aimed to influence the performance of his duties, is “in nearly the same situation” any of us are in when we respond to a subpoena.

— Renato Mariotti (@renato_mariotti) July 9, 2020

And Norm Eisan, Sr. Fellow at the Brookings Institution:

Here’s the opinion in Vance https://t.co/UUAcWqOLIs.

But let me break it down for you:

Trump is going to get prosecuted and is very likely looking at conviction.

— Norm Eisen (@NormEisen) July 9, 2020

Trump v. Mazars

Mazars, while not the dropkick to tyranny of Vance, nonetheless dispels the notion of unlimited power of any branch of our government. While now it may be a House we like seeking financial records, that may not always be the case. As the issue of Separation of Powers raised in Mazars is a novel one, a future ruling will likely affect constitutional law for generations to come.

Background

If the name “Mazars” sounds familiar, it’s because this accounting firm also features in Vance. In 2019, three different House committees issued subpoenas for financial information relating to Trump, his family, and his business, each subpoena regarding the legislative duties of the committees. Trump contested the subpoenas, with the argument that the legislative branch sought to usurp the law enforcement powers of the executive branch.

There were initially two cases: Trump v. Deutsche Bank AG & Capital One in the Southern District of New York prompted by the subpoenas from the Financial Services and Intelligence Committees, and Mazars, which stemmed from the House Oversight Committee. In both cases, the appeals courts ruled in favor of the House and against Trump.

Background

While affirming Congress’s subpoena power of the president when it meets the required test, the Court found the lower courts had not sufficiently considered the Separation of Powers issues raised by the subpoenas and remanded the cases for further proceedings.

SCOTUS did not seem pleased to have this issue put before it. Chides the Court:
“For more than two centuries, the political branches have resolved information disputes using the wide variety of means that the Constitution puts at their disposal.”

In the opinion, the Court sets a test to determine if a congressional subpoena of a president’s papers is proper. SCOTUS says, due to the very nature of the presidency, no bright line can be drawn between the person and the office; that seeking personal papers does not lessen the care required, and nor does seeking the records from a third party.

The test:

1. Are the papers necessary for the legislative purpose?
2. Is it narrow? “[C]ourts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.”
3. What is its purpose? “The more detailed and substantial the evidence of Congress’s legislative purpose, the better.”
4. What burden does it impose on the president? “…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.”
5. Other factors. As the Court dryly put it: “Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.”

The Court did not rule on the substance of the Separations of Power issues but instead sent the cases back to the lower courts.

What Happens Next In Mazars (And Deutsche)

The cases now go back to the trial courts, where the House will argue that its subpoenas meet the test as defined by SCOTUS, and both parties will argue the issues relating to the separation of powers. This procedure of remanding though possibly incidentally advantageous to Trump given the time involved in sending the case back, is typical in a case where the Supreme Court vacates, or completely voids, a lower court ruling.

Why Mazars Matters

Though dismissed by many as a “punt” by the Supreme Court back to the lower courts, and not as morally satisfying as Vance, Eisen described the ruling as “a glass ¾ full.” The case did affirm Congress’s power to subpoena the president, and created a bright-line test for future cases.

That this case even found its way to SCOTUS underscores the times in which we find ourselves. Says former US Attorney and law professor Joyce White Vance:

One aspect of the Mazars decision that SCOTUS focuses on is the reason there is no precedent regarding Congressional subpoenas – it’s because every other president has resolved these issues with compromise as opposed to Trump who flatly refuses any Congressional oversight. pic.twitter.com/tIMANjPfIi

— Joyce Alene (@JoyceWhiteVance) July 9, 2020

The eventual resolution of the separation of powers questions raised will shape constitutional jurisprudence. Says Rep. Adam Schiff, chairman of the United States House Permanent Select Committee on Intelligence (D-CA):

No one is above the law, not even the President of the United States.

Nor are they immune from congressional oversight or criminal investigation, no matter how much they endeavor to delay or evade them.

My statement on the Supreme Court decision this morning: pic.twitter.com/a31B0sgSIX

— Adam Schiff (@RepAdamSchiff) July 9, 2020