Donald Trump is right about one thing: he lost at the Supreme Court today. Bigly, as he might say.
In two 7-2 decisions, both written by Chief Justice John Roberts, the Court affirmed that both Congress and the New York District Attorney have the right to subpoena Trump’s (and any sitting president’s) tax returns and other financial records.
Trump’s “imperial presidency,” in which he has asserted, over and over again, that he is immune from prosecution or judicial review or impeachment or even investigation, has finally come to an end. He is not.
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Of course, the practical results in the cases are a bit more complicated.
In the congressional case, Trump v. Mazars, the Court ruled that the congressional subpoenas were overbroad, and that, because of their unprecedented nature, the lower courts that reviewed them didn’t have a way to evaluate them properly.
So the Court created a new, four-part test for evaluating such requests and kicked the case back to the district court. The Court strongly indicated that Trump would eventually prevail since the subpoenas had been so sloppily and broadly drafted by House Democrats, who had asked for anything and everything from everybody, and who only tenuously tied the requests to a particular legislative action.
That’s definitely a win for Trump.
But only the two dissenters, Justices SamuelAlito and Clarence Thomas, said that presidents are immune from congressional subpoenas. That was Trump’s core argument, and he totally lost.
In the New York District Attorney case, Trump v. Vance, the Court ruled, also by 7-2, that a New York grand jury, acting at the behest of District Attorney Cy Vance, can subpoena Trump’s tax records and “other financial documents” as part of a criminal investigation.
Once again, seven justices of the Court totally rejected Trump’s core argument: that presidents are immune from state criminal prosecutions. Once again, only Justices Thomas and Alito agreed with it. (Justices Neil Gorsuch and Brett Kavanaugh, Trump’s two appointees on the bench, wanted a higher standard of review than Chief Justice Roberts’s opinion set, but they agreed with the overall result.)
Moreover, contrary to much of the post-decision speculation in the media, there’s a solid chance that Trump will have to turn over his financial records before the election.
Technically speaking, Trump v. Vance is about Trump trying to stop Vance’s subpoena from being executed. The district court, the Second Circuit Court of Appeals, and now the Supreme Court have now all rejected that effort.
True, Roberts’s opinion ends, somewhat ominously, by noting that “the case [is] returned to the District Court, where the President may raise further arguments as appropriate.”
But that is exactly what Vance’s office had asked for.
And what are those “further arguments”? The Supreme Court has rejected Trump’s arguments already: that he is totally immune from prosecution, or that a heightened standard of review should be applied to cases against him.
Moreover, District Judge Victor Marrero—incidentally, Justice Sonia Sotomayor’s successor and a Clinton appointee—in his decision in the case from October 2019, dismissed not just Trump’s immunity claims but a host of other claims he brought.
Trump’s lawyers have thrown everything at the wall already. Nothing has stuck.
Moreover, Judge Marrero has the authority to expedite these proceedings, given their sensitivity, and Vance has already argued, many times, that time is of the essence: The statute of limitations clock is ticking, and to delay this investigation would hand Trump a de facto victory.
Nor is it likely that an appeal would succeed. The Circuit Court and Supreme Court have now disposed of the major issues, and the minor ones have been decided by past cases and precedents.
In other words, we don’t know when Trump’s financial records will be released to the district attorney, but there’s a good chance that that will be sooner rather than later. Including before the election.
But let’s not forget the long game here.
Donald Trump’s presidency has been a catastrophe for American society, the standing of America on the world stage, and the rule of law in general. Trump’s reckless disregard for the law has been the subject of an impeachment trial, and numerous Supreme Court cases on the travel ban, the border wall, the DACA immigration policy, Obamacare, the U.S. census, environmental law, and a host of other issues.
But it’s not just a matter of court cases. Trump’s endless torrent of vulgar, vituperative, and false statements—including, today alone, outrageous calumnies against Vance and the entire judicial system—have denigrated our public discourse, enraged Trump’s nationalist base, and diminished the standing of the judicial system. As numerous Republicans as well as Democrats have warned, our very democracy is in danger.
And on that front, Chief Justice Roberts has delivered the goods.
True to his institutionalist orientation—seeking to preserve, or restore, legitimacy to the Supreme Court in an ideologically polarized time—Roberts has ruled against Trump on DACA, the census, and numerous other issues, insisting that presidential fiat is insufficient grounds for making or breaking the law.
Even when he ruled for Trump in the travel ban case, Roberts based his decision not on Trump’s outrageous statements but on the reasons provided by governmental agencies for putting the policy into place.
And now, Roberts has rejected the central pillar of Trump’s authoritarian self-conception: that he is above the law and immune from prosecution or investigation.
Nor is it just Roberts, or Roberts and the liberals. Justices Gorsuch and Kavanaugh have jumped off the Trump train as well, voting that presidents can be tried in state criminal court and can have their personal financial records subpoenaed by Congress.
Trump may have thought he was installing puppets in the Supreme Court, but Gorsuch and Kavanaugh just cut the strings.
So, yes, the net result of today’s decisions may be a short-term victory for Trump. He almost certainly won’t have to give his tax returns to Congress, and may escape giving them to the DA before the election.
But today is a resounding defeat for Trumpism, one our country has urgently needed.
