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That the Supreme Court was failing its constitutional role had been clear to close observers since the 1976 decision in which the court ruled that election spending was "speech." (Photo: Joe Ravi/CC-BY-SA 3.0)

Unequal Justice: Trump Isn't Above the Law, But Taxes May Stay Hidden

Even after a pair of landmark decisions delivered by the Supreme Court, we still aren’t going to see the President’s financial records any time soon.

Bill Blum

 by The Progressive

With echoes of Watergate and explicit references to the 1807 treason trial of Aaron Burr, the U.S. Supreme Court has wrapped up another term with a pair of landmark decisions on presidential power.

The two cases concern President Donald Trump’s attempt to block subpoenas issued by Congress and a New York City prosecutor, seeking his tax returns and personal financial records.

Writing for a 7-2 majority in both cases, Chief Justice John Roberts rebuffed Trump’s arguments of sweeping presidential immunity and reaffirmed the bedrock principle that no one—including the President—is above the law.

For progressives, the court’s rulings are good news. But hold the Champagne and keep the party hats securely stowed.

Even though Trump technically lost both cases and ultimately may have to comply with the subpoenas, we aren’t going to see the President’s financial records any time soon, and certainly not in time for the November election. In each case, Roberts remanded the litigation back to the lower federal courts, permitting Trump to raise objections to the scope and burdensome nature of the subpoenas.

The cases before the court are Trump v. Mazars USA, LLP (which was consolidated for decision along with the case of Trump v. Deutsche Bank AG), and Trump v. Vance.

In the first two, the President is trying to invalidate subpoenas issued by the House Committee on Financial Services, the Permanent Select Committee on Intelligence, and the House Committee on Oversight and Reform. In the latter, he’s attempting to overturn a subpoena issued by a New York City grand jury under the direction of Manhattan District Attorney Cyrus Vance.

None of the subpoenas seek information regarding Trump’s official acts as President. All concern his private conduct and his personal business affairs.

The subpoenas in the three cases are similar, but not identical. In Deutsche Bank, the House is seeking records from the German-based conglomerate and the U.S. corporation Capital One, dating back to 2010, including Trump’s as-yet-unreleased tax returns. The subpoenas also seek records pertaining to Trump’s children, Don Jr., Eric, and Ivanka.

The Trump family has accounts with both financial institutions. Deutsche Bank is alleged to have loaned the President more than $2 billion over two decades. The House committees contend the subpoenas were issued in furtherance of their oversight responsibilities, and that the records are needed to help them draft legislation to protect future American elections from the kind of foreign influence that marred the last presidential campaign.

In Mazars, the House has demanded that Trump’s principal accounting firm turn over eight years of financial materials, from 2011 to 2018, detailing work performed on behalf of Trump, the Trump Organization, and other businesses owned by the President. The committee contends it needs the records to decide whether to revise or supplement current ethics-in-government laws.

The President’s lawyers have countered that the House is illegally engaging in law-enforcement actions rather than pursuing legislation, and prying into his private life for political purposes. In the end, the Mazars decision is a mixed bag. It recognizes the oversight authority of Congress to “secure needed information,” but it also places strict limits on the House’s subpoena power. The decision holds that congressional subpoenas are “justified solely as an adjunct to the legislative process.”

Rather than make the final call themselves, however, Roberts and the majority sent the appeals back to the lower federal courts to apply a demanding four-part test aimed at determining if the subpoenas indeed have a legislative purpose and to permit Trump to narrow their breadth.

The decision in Vance is more far-reaching. Although the Vance subpoena was also served on Mazars and largely requests the same information sought by the House, Roberts’s opinion recognizes the authority of a state grand jury to demand documents from a sitting President.

Among other potential crimes, District Attorney Vance is investigating whether New York’s bank fraud and tax laws were violated when the President’s longtime “fixer” Michael Cohen, now a convicted felon, was reimbursed for making “hush money” payments to pornographic film star Stephanie Clifford, a.k.a “Stormy Daniels,” and former Playboy Magazine model Karen McDougal during the 2016 Presidential campaign.

Reaching deep into the history of U.S. Constitutional law, Roberts cited Chief Justice John Marshall’s approval of subpoenas issued to President Thomas Jefferson in the 1807 treason trial of Aaron Burr. The opinion is also layered with repeated references to the cases of United States v. Nixon and Clinton v. Jones.

In the process, Roberts rejected both the claim raised by Trump’s private attorney Jay Sekulow that sitting presidents enjoy “absolute immunity” from state criminal investigations, as well as an alternative contention advanced by the Justice Department that state prosecutors must demonstrate a “heightened” standard of need before gaining access to the President’s records.

“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,” Roberts wrote. “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.”

Not surprisingly, Roberts’s opinions have enraged the President. In a series of disjointed and sputtering tweets Thursday morning, Trump condemned the decisions.

“Now the Supreme Court gives . . . a ruling they would never have given . . . for another President,” he complained. Calling the Vance case “a political prosecution,” he continued: “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!”

Trump, who has openly feuded with Roberts on questions of judicial independence, no doubt is also incensed by the fact that his appointees to the Supreme Court—Neil Gorsuch and Brett Kavanaugh—deserted him in his hour of need. Although neither formally signed off on Roberts’s opinion, Kavanaugh penned a concurring opinion, joined by Gorsuch, supporting the court’s judgment. Only the court’s most hardcore conservatives—Clarence Thomas and Samuel Alito—dissented.

It will be a long time, however, before any of Trump’s records see the light of day. Grand jury proceedings in New York are secret, and the wheels of justice, now that the cases have been returned to the lower courts for further proceedings, can be expected to turn slowly.

© 2021 The Progressive
Bill Blum

Bill Blum

Bill Blum is a former administrative law judge and death penalty defense attorney. He is the author of three legal thrillers published by Penguin/Putnam and a contributing writer for California Lawyer Magazine. His non-fiction work has appeared in a wide variety of publications, ranging from The Nation and The Progressive to the Los Angeles Times, the L.A. Weekly and Los Angeles Magazine.

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