After two bruising losses in federal court, President Donald Trump’s private lawyers are poised to head to the Supreme Court in hopes that the justices will block a Manhattan grand jury subpoena for the President’s tax records.
Taking the case would mean the justices, who strive to stay out of the political fray, would have to deal squarely with an issue that has dogged Trump since before the election and is the subject of other pending legal challenges.
If the court affirms the lower court rulings, or declines to take up the government’s appeal, it will clear the way for records to be reviewed by a grand jury, igniting a firestorm even if they aren’t publicly released. If, however, the justices ultimately upend the lower courts, they will be reversing decisions steeped in decades-old precedent and potentially issuing an opinion next spring, just as the presidential campaign gets into full swing.
No matter what, the nine justices – five appointed by Republican presidents, four by Democrats – could find themselves in the glare of an unwelcome spotlight. And the public is sure to focus on Trump’s two picks, Neil Gorsuch and Brett Kavanaugh.
Under a prior agreement, this should all start to play out before the Thanksgiving break. Lawyers for the President are due to file papers within 10 days in order to keep the subpoena blocked. One unknown is if the Department of Justice will weigh in, which could add a delay.
Under normal circumstances, the case will be scheduled for discussion at one of the Supreme Court’s regular closed door conferences. Only the justices would attend that meeting, with no clerks or staff allowed inside.
What’s still unclear is at which conference the case will be discussed. There are two conferences scheduled in December, on the 6th and the 13th – though the justices could hold the matter until the first scheduled conference in early January, or even later. If the briefing is complete by January, the justices could still decide to hear a case for this term with an opinion by the end of June.
But while the case is expedited and both sides want a speedy resolution, the justices could also decide to sit on the petition for weeks or months. There’s precedent for that. Last term, the Trump administration urgently asked the Supreme Court to take up a case concerning the Obama-era Deferred Action for Childhood Arrivals program. Without explanation, the justices sat on the petition, and only decided at the end of last term to take it up this term.
If the court decides to take up the case, the subpoena would remain blocked until the decision is rendered. If the court denies the petition, according to an arrangement between the parties, the subpoena would go into force – though the information would still be subject to grand jury secrecy rules.
The situation has court watchers gaming out Trump’s chances and questioning how the justices will receive his sweeping view of executive power and broad assertions of immunity. So far, a district court judge has issued a scathing opinion criticizing the President’s claims of absolute immunity in the case, and a federal appeals court, while taking a more restrained approach, also ruled against the President.
The case arises out of a state criminal investigation led by New York County District Attorney Cyrus A. Vance, who served a subpoena on Trump’s long time accounting firm, Mazars USA, as part of an investigation into hush money payments. Trump’s lawyers sued in federal court to block the subpoena.
“Under Article II, the Supremacy Clause, and the overall structure of our Constitution, the President of the United States cannot be subject to the criminal process while he is in office,” William S. Consovoy, one of the President’s personal lawyers, argued.
On November 4, a three-judge panel of the Second Circuit Court of Appeals issued a careful opinion that sidestepped some of the President’s more expansive claims.
“We have no occasion to decide today the precise contours and limitations of president immunity from prosecution,” Judge Robert A. Katzmann wrote for his colleagues. “We conclude only that presidential immunity does not bar the enforcement of a state grand jury subpoena” directed at Trump’s long time accounting firm, the Court held. Katzmann made sure to note however, that the “past six Presidents, dating back to President Carter, all voluntarily released their tax returns to the public”.
Some believe that the justices will ultimately stay out of the case and deny the government’s petition because the justices may feel that the lower court opinion did not break much new ground. That’s because Katzmann’s opinion was so tailored to the case at hand, dealing only with a third party subpoena for the records that will be subject to rules governing grand jury secrecy.
“The Second Circuit decided this case on particularly narrow grounds, so the legal question might not strike the justices as being as important as it is to the President,” said Jonathan H. Adler of Case Western Reserve University School of Law.
Adler said that all the “truly meaty issues” such as whether a state could prosecute a sitting president for crimes committed while in office were left for another day.
“The court did not decide that the President has no immunity from prosecution nor that the President must himself turn over materials,” Adler said. “It only decided that a prosecutor may seek information about the President’s business dealings from third parties as part of a criminal investigation before a grand jury.”
If Adler is right, and the court denies the government’s request, than the subpoena will go out but the tax returns won’t be immediately available to the public. In court papers, lawyers for Vance point out that “a grand jury, with its laws surrounding secrecy, would be obliged to protect any documents turned over in response to the Mazars subpoena.”
“Don’t get your hopes up that you might see Trump’s records soon,” Georgetown Law professor Marty Lederman tweeted on Tuesday. “The parties in the grand jury proceedings can’t make them public,” he wrote. “During Trump’s term they’ll be disclosed only in a trial of other persons, if they’re relevant there – which will be months from now at best.”
Left unanswered would be more sweeping claims Trump has made in other contexts, such as a letter that White House counsel Pat Cipollone sent to House leadership refusing to participate in the impeachment inquiry, or another pending case where the House is also seeking to subpoena Mazars.
In an interview with CNN, Jeffrey Rosen, the president of the National Constitution Center, suggested that Katzmann’s opinion was airtight. He noted that the court relied upon United States v. Nixon, a 1974 case dating back to the Watergate era where the Supreme Court held that the president was not immune from a federal court’s criminal subpoena.
“Richard Nixon had to turn over arguably privileged materials,” Rosen said.
“Here there’s no claim of executive privilege, the tax returns were before he was president, he’s not going to be arrested,” Rosen said and added “it’s just ordering the accountants to turn over the documents.”
Others think the justices might agree to hear the case, especially if it is asked to do so by the Department of Justice. There is no requirement for the United States to file a “friend of the court” brief in the case at all, and the solicitor general rarely files uninvited amicus briefs. But a key factor for the justices may be whether the government asks the court to take up the case and stresses the importance of the issue to the executive branch. Indeed, the Justice Department did file a brief before the Second Circuit backing the President.
Notably, the Justice Department position did not have the breadth of the arguments made by Trump’s personal lawyers, but the government lawyers said “the issuance of a grand jury subpoena seeking the President’s personal records raises profound constitutional concerns.” In briefs they encouraged the courts to adopt a bright line rule that requires a “heightened, particularized showing for any state criminal subpoena for a President’s personal records.”
Another reason that the justices might step in, according to Steven Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of law, is out of deference to the President.
“The Court historically has shown special procedural solicitude to the President in cases like this, and usually goes out of its way to ensure that the President is given his due without regard to the substantive claims he’s raising,” Vladeck said. “Through that lens, a grant here would simply be the Supreme Court saying that it should be up to the Justices, and not the lower courts, to decide when an under what circumstances the President’s personal information can properly be subject to a subpoena.”