As published on cnbc.com, Tuesday November 26, 2019.
President Donald Trump won a temporary victory at the Supreme Court this week, when a majority of the justices voted to temporarily halt a subpoena issued by Congress for his financial records.
That move was largely expected. In fact, the subpoena had already been halted by Chief Justice John Roberts in order to give the court time to consider the issue. The court’s move on Monday evening extended that freeze with a vote from the full panel.
The subpoena was issued by the Democratic-led House Oversight Committee in April to Trump’s longtime accounting firm Mazars USA, and seeks a wide variety of financial documents including both personal and business records.
Trump has bucked recent precedent by refusing to voluntarily disclose his financial records. He is the first president in more than four decades not to release his tax returns.
The real action happens next. In its order, the court gave the president until Dec. 5 to file his formal appeal, known as a petition. The fact that the panel asked for the president’s filing so soon likely means that the court intends to rule on the matter in its current term, which ends in June.
The president’s petition will ask the court to review a decision against him issued by a 2-1 vote of a federal appeals court in Washington, D.C., in October.
The court is already weighing whether it will review a separate decision over the president’s financial records issued by a federal appeals court in New York. The three-judge panel in that case ordered Mazars USA to turn over the president’s financial records to the Manhattan district attorney.
Experts expect that the court will agree to take the cases, but it’s not clear if the president will ultimately prevail. It takes four justices on the nine-member panel to agree to hear a case. The court currently has a 5-4 conservative majority, including two Trump appointees, Justices Neil Gorsuch and Brett Kavanaugh.
If the court agrees to take the cases, it will likely hear oral arguments some time between February and April. The cases will join what is already a packed term of cases on issues involving guns, abortion, and the DACA program that protects 700,000 “Dreamers,” which could focus attention on the court’s new conservative majority during a contentious election year.
The court generally releases its most high-profile opinions in June. In May, Trump wrote in a post on Twitter that he hoped the fight for his tax returns would be “part of the 2020 Election.” He’s likely to get what he asked for.
The top court has never settled the specific legal questions at the heart of the two cases involving the president’s financial records, according to Marty Lederman, a former Justice Department attorney.
It has not had the opportunity to do so. No president has ever asked the court to review a subpoena for his personal papers that predate his time in office, or for one issued by a state prosecutor targeting him in a criminal investigation.
But Lederman said he expects that the justices will ultimately rule against the president. In the two cases that most closely resemble Trump’s appeals, involving Presidents Richard Nixon and Bill Clinton, the Supreme Court voted unanimously against the commander in chief.
The first case, U.S. v. Nixon, arose out of the Watergate scandal that ultimately doomed Nixon’s presidency. The court rejected Nixon’s claims of immunity on the basis of “executive privilege,” and ordered him to deliver tape recordings as part of a court proceeding against some of his closest aides.
In the second, Clinton v. Jones, the court considered whether Clinton was immune to a sexual harassment suit brought against him while he was in office. The court rejected Clinton’s claim of immunity, though it noted that there could exist exceptional circumstances in which such immunity could exist.
In both cases, justices voted against the president who appointed them, including three Nixon appointees and two Clinton appointees. Those Clinton appointees, Justices Stephen Breyer and Ruth Bader Ginsburg, as well as Justice Clarence Thomas, who was on the court in Clinton v. Jones and was appointed by President George H.W. Bush, remain on the bench.
Ashwin Phatak, who serves as counsel at the Constitutional Accountability Center, a left-leaning think tank in Washington, said that some of the broader propositions from the Nixon and Clinton cases are relevant in Trump’s battles.
“If the court rules in favor of the president, that would be a sea change in how people think about this issue of presidential immunity,” he said.
But Elizabeth Slattery, a legal researcher at The Heritage Foundation who hosts the popular “SCOTUS 101” podcast, said that Trump is looking to distinguish the current case from those past rulings. The Heritage Foundation is a conservative think tank.
Slattery said that a point in the president’s favor is the appearance that Congress is attempting to add a qualification to the presidency — namely, the disclosure of personal financial information.
“Congress cannot expand or alter the qualifications for the office of the president,” she said.
And, she said, congressional subpoenas are not the method that the Constitution provides for probing a sitting president.
“It all comes back to the fact that impeachment is the way that Congress can investigate, not through pseudo law enforcement tools,” she said.
Ultimately, if the court takes the cases, the deciding vote could be Roberts, who is known to care about the court’s reputation and, alongside Kavanaugh, occupies the panel’s ideological center.
Trump has faced major challenges to his presidency at the end of each of the last two Supreme Court terms, and in each case, Roberts has written the court’s 5-4 opinion.
In June of 2018, Roberts sided with the majority to uphold an iteration of the president’s travel ban. But the next year, Roberts flipped sides in a case involving the Trump administration’s attempt to add a citizenship question to the 2020 census, effectively killing the proposal.