Perhaps saving the most fascinating for last, the U.S. Supreme Court officially closed out its 2020 session with two rulings regarding President Trump’s tax returns. These decisions mean the final dispensation of both cases may not occur before the presidential election. Some are calling this a loss for the president; others say perhaps not. While there are political implications, Liberty Nation would like to bring forward a coherent understanding of each ruling today. To do that, we turn to LN Legal Affairs Editor Scott D. Cosenza, Esq.
Leesa K Donner: Scott, let’s begin with the New York case first. So, Manhattan District Attorney Cyrus Vance, Jr. subpoenaed Mr. Trump’s tax records in a criminal investigation, and the president’s attorneys argued Trump should be immune from criminal prosecution by virtue of his standing as president of the United States. But in a 7-2 decision, the High Court essentially said – not so fast.
Scott D Cosenza: The Supreme Court completely rejected President Trump’s argument that because he is president, he is immune from this kind of subpoena. In his concurring opinion, Justice Kavanaugh wrote, “The Court today unanimously concludes that a President does not possess absolute immunity from a state criminal subpoena …”
That’s far from the end of the story, however.
Just because any president doesn’t have blanket immunity from a criminal subpoena doesn’t mean Donald Trump must comply with this particular subpoena. The Supreme Court has sent the case back down to the district court, where President Trump may assert other claims against complying with the subpoena, just not the blanket immunity entitlement that failed today.
LKD: So, what you are saying is that the president lives to fight another day regarding the New York case. But let’s put a little meat on the bone: I’m interested in where the chips fell on this one. We get that the Court voted 7-2, but how did that pan out regarding the justices, and did you find any comments of high interest in either the decision or the dissents?
SDC: While all the justices agree that the president gets no blanket immunity, they also all concur that there must be different rules for the sitting president than for John Q. Public. There were three opinions in the case, and each articulated a different standard required to subpoena a president. Trump will undoubtedly use the majority opinion written by Chief Justice Roberts and signed by Justices Ginsburg, Breyer, Kagan, and Sotomayor as a playbook for future proceedings in the District Court. Roberts wrote:
“A President can raise subpoena-specific constitutional challenges, in either a state or federal forum. As previously noted, he can challenge the subpoena as an attempt to influence the performance of his official duties, in violation of the Supremacy Clause. This avenue protects against local political machinations ‘interposed as an obstacle to the effective operation of a federal constitutional power.’ In addition, the Executive can—as the district attorney concedes—argue that compliance with a particular subpoena would impede his constitutional duties.”
LKD: Interesting. Okay, what about the so-called congressional case. Again, we have a 7-2 decision. How do you parse this one out – are we looking at a win, a loss, or a draw for President Trump?
SDC: This case gives the same ruling about blanket immunity, but it includes some extra consideration for the president’s position. The Justices sent the case back to the lower courts to rule on whether the subpoena would be valid under this new decision. I think that determination provides a reason for President Trump to believe he will not have to give up those returns, or at least that the fight over them will continue past election day. Since his exhaustive financial disclosure forms are all public, this is simply about Democrats hoping it will be revealed Trump paid little to no taxes on massive income. The Court’s majority said such a subpoena against the president deserves “special consideration.” Once again, Roberts wrote for the majority, and this time Kavanaugh and Gorsuch signed on to the Chief Justice’s opinion. He wrote:
“First, courts should carefully assess whether the asserted legislative purpose warrants the significant step of involving the President and his papers.”
“Second, to narrow the scope of possible conflict between the branches, courts should insist on a subpoena no broader than reasonably necessary to support Congress’s legislative objective.”
“Third, courts should be attentive to the nature of the evidence offered by Congress to establish that a subpoena advances a valid legislative purpose.”
“Fourth, courts should assess the burdens imposed on the President by a subpoena, particularly because they stem from a rival political branch that has an ongoing relationship with the President and incentives to use subpoenas for institutional advantage.”
Then Roberts wrapped it up in a doozy that indicates the litigation on this will endure: “Other considerations may be pertinent as well; one case every two centuries does not afford enough experience for an exhaustive list.” There’s plenty of room there for multiple future trips up and down the appellate chain to resolve the novel issues if they want to continue fighting over the returns.
LKD: You deflected … so does Trump win, lose or draw?
SDC: Trump’s goal in this fight has been to keep these returns private. As long as they still are, he is still winning.
LKD: Finally, Scott, how do you see these two decisions considering proper interpretation of the Constitution?
SDC: With respect to the congressional subpoenas, since the Constitution is silent on the matter, I think the president need not respond outside of impeachment proceedings. That is Justice Thomas’ view and makes the most sense to me. The Constitution is the rulebook for how the co-equal branches must deal with one another. Today, one branch tells another how they must interact with the third – that is a recipe for meddling, and, from a constitutional viewpoint, I would prefer that not happen.
Regarding the New York criminal court claim, there is not much help to guide us in the Constitution either. Justice Alito seems to think the best course is to withhold all criminal prosecutions until the president leaves office. With a commensurate staying of relevant statutes of limitations, this seems like a way to preserve justice while upholding protections for craven use of state criminal charges to advance partisan politics, as Manhattan DA Cyrus Vance appears to be doing in this case.
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