The Supreme Court and Trump’s Tax Returns The stakes are bigger than the political fate of this President.
https://www.wsj.com/articles/the-supreme-court-and-trumps-tax-returns-11589238780?mod=opinion_lead_pos1
“In short, there’s no legal precedent for the Democratic subpoenas. And the Justices will have to consider the damage that upholding the subpoenas would do to the separation of powers that would outlive the Trump Presidency.”
It will be a full online house on Tuesday when the Supreme Court hears a legal double-header over President Trump’s tax returns. Mr. Trump has broken political norms by refusing to release his returns, but the Court will have to consider whether letting Democrats subpoena them will do more lasting damage to the country’s law and institutions.
Trump v. Mazars concerns whether House Democrats can subpoena the President’s financial records. We’ve urged Mr. Trump to release his tax returns, and his refusal has let Democrats claim they are a Rosetta stone to a Russian money-laundering conspiracy, or something. An IRS audit probably would have turned up any tax fraud, and no law obliges a President to release his returns.
But mere days before special counsel Robert Mueller’s Russia non-collusion report was publicly released, the House Oversight Committee subpoenaed the President’s accounting firm Mazars for eight years of his business records. The Intelligence and Financial Services committees subpoenaed Capital One and Deutsche Bank for his family’s financial records.
While the Constitution doesn’t grant Congress subpoena power, the Court has allowed lawmakers to exercise this authority if they have “a valid legislative purpose” Barenblatt (1959). The Court has usually deferred to Congress’s stated legislative purpose. We’ve argued, including last year in New York v. Department of Commerce, that judges shouldn’t probe the possible political motivations for official actions. But here Democrats are transparent about targeting the President.
“He refuses to turn over the tax returns, what does he have to hide?” Financial Services Chairwoman Maxine Waters mused last May. Then Oversight Chairman Elijah Cummings wrote in a memo that his subpoena was necessary to investigate whether President Trump “may have engaged in illegal conduct before and during his tenure in office.”
Democrats later dressed up their subpoenas with fictitious legislative purposes. The financial records could be “a useful case study” to learn about “unsafe lending practices” and “money laundering” as well as “efforts by Russia and other foreign entities to influence the U.S. political process during and since the 2016 U.S. election,” they wrote in court briefs.
Mr. Trump’s business records, they added, might also show how “enhanced prudential standards are being applied to the largest banks operating in the United States.” Democrats don’t need Mr. Trump’s tax returns to study leverage in banking. This would be like Republicans subpoenaing Barack Obama’s birth certificate to study immigration legislation.
As D.C. Circuit Court of Appeals Judge Neomi Rao explained in her Mazars dissent, “Allowing the Committee to issue this subpoena for legislative purposes would turn Congress into a roving inquisition over a co-equal branch of government.” Medical records, private emails, cell phone logs—none of the President’s personal papers would be out of Congress’s reach.
We can hear the left rejoin: But Republicans investigating Whitewater subpoenaed business records from the Clintons and their associates. Yes, but they had evidence of financial misconduct from a criminal referral. The legality of Congress’s Whitewater subpoenas were never decided by a court. Remember the Rose law firm billing records that were found in the White House residency two years after being subpoenaed?
Democrats have subpoenaed Mr. Trump’s records despite no evidence of financial crimes. Though Mr. Mueller found no collusion between the Trump campaign and Russia, Democrats still argue their subpoenas are necessary to investigate collusion.
In short, there’s no legal precedent for the Democratic subpoenas. And the Justices will have to consider the damage that upholding the subpoenas would do to the separation of powers that would outlive the Trump Presidency.
***
There’s at least some legal precedent to support Manhattan District Attorney Cyrus Vance Jr.’s subpoena of Mr. Trump’s financial records as part of a criminal investigation. We don’t think a President should be absolutely immune from criminal investigation, as Mr. Trump’s attorneys argue. But Tuesday’s second case, Trump v. Vance, raises vexing questions about federalism.
The two important Court precedents here are U.S. v. Nixon (1974) and Clinton v. Jones (1997), but neither is precisely apt. In Nixon, the Court allowed a special counsel to subpoena White House tapes in a criminal investigation of the President’s associates. Jones held that a President is not immune from civil lawsuits in federal court for out-of-office conduct. In both cases the Court emphasized that courts should not “proceed against the president as against an ordinary individual.” Both rulings were narrowly drawn to the facts at hand.
The Solicitor General makes a compelling argument that there should be a heightened judicial standard for criminal subpoenas directed at a sitting President including a strong showing of critical need. This is important to protect the President from harassment by 50 state Attorneys Generals and 2,300 local District Attorneys who may have political motives.
Mr. Trump won’t be President forever, and the Court will have to reflect on how its decisions will affect America’s political institutions amid hyper-partisanship that won’t end when a Democrat takes the White House.
Comments are closed.
